Al Mansori and Minister for Immigration and Border Protection (Migration) - [2017] AATA 713

Al Mansori and Minister for Immigration and Border Protection (Migration) [2017] AATA 713 (19 May 2017)
Division:GENERAL DIVISION
File Number: 2017/1341
Re:Ali Al Mansori
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President K Bean
Date:19 May 2017
Place:Adelaide

The decision under review is affirmed.
............ [Sgd]...................................
Deputy President K Bean
CATCHWORDS
IMMIGRATION – Application for revocation of mandatory visa cancellation – Cancellation of visa on character grounds under s 501 – Consideration of principles under Ministerial Direction 65 – Decision under review affirmed.
LEGISLATION
Migration Act 1958, ss 501, 501CA
Migration Regulations 1994, Schedule 2, cl 866.5
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
R v Bui [2016] SASCFC 53
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
BNVM and Minister for Immigration and Border Protection [2017] AATA 621
REASONS FOR DECISION
Deputy President K Bean
19 May 2017

The applicant, Mr Al Mansori, is a 31 year old citizen of Iraq. He arrived in Australia on 20 August 2001 without a valid visa. On 19 December 2005, he was granted a subclass 866 protection visa and this visa remained in effect for five years from the date of grant.[1] That visa ceased on 4 February 2011.
[1] Migration Regulations 1994, Schedule 2, cl 866.5, in force at the time.
Upon the expiry of the subclass 866 visa, Mr Al Mansori was granted a series of temporary visas. He was granted the visa the subject of the present application on 17 June 2011.[2]
[2] Exhibit R1, p 71.
On 15 March 2012, Mr Al Mansori was convicted in the District Court of South Australia of intentionally causing harm (the 2012 conviction). He was sentenced to two years and 10 months imprisonment (suspended, with a good behaviour bond of two years). Within the good behaviour bond period, Mr Al Mansori offended again. More particularly, on 10 October 2014, the District Court convicted him of drug-related offences, which occurred on 30 January 2014 (the 2014 convictions). A breach of the good behaviour bond for the 2012 conviction was also found proven and the suspension was revoked. The Court sentenced Mr Al Mansori to a term of imprisonment of four years and four months.[3]
[3] At Exhibit R2, pp 103-106.
On 14 December 2016, whilst Mr Al Mansori was incarcerated, his then current visa was cancelled under s 501(3A) of the Act.[4] A delegate was satisfied that Mr Al Mansori did not pass the character test.[5]
[4] Exhibit R1, p 74.
[5] Migration Act 1958 ss 501(6)(a) and 501(7(c).
Mr Al Mansori applied for revocation of the visa cancellation on 4 January 2017. However on 24 February 2017, a delegate of the Minister decided that the visa cancellation would not be revoked, finding that Mr Al Mansori failed the “character test” and the delegate was not satisfied that there was “another reason” why the cancellation decision should be revoked. [6]
[6] Migration Act 1958 s 501CA(4)(b)(ii).
Mr Al Mansori was notified of this decision on 28 February 2017 and applied to the Tribunal for review on 8 March 2017.
LEGISLATIVE FRAMEWORK
Relevant Provisions of the Act
Section 501 of the Migration Act 1958 (the Act) provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” 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 State, the Minister must cancel the visa: s 501(3A) of the Act.
In this regard, a person has a “substantial criminal record” if the person has (among other things) been sentenced to a term of imprisonment of 12 months or more: s 501(7) of the Act.
The character test is set out at s 501(6). It is not in dispute that Mr Al Mansori does not pass the “character test”, because he has a substantial criminal record and therefore satisfies s 501(6)(a). Furthermore, at the time of cancellation, Mr Al Mansori was serving a sentence of imprisonment full‑time in a South Australian custodial institution.
Therefore, on 14 December 2016, a delegate of the Minister cancelled the visa in compliance with the statutory requirement in s 501(3A) of the Act.
Under s 501CA(4), the Minister may revoke a visa cancellation if the person makes representations in accordance with an invitation to do so within a prescribed time, and the Minister is satisfied that the person either passes the character test or there is another reason why the original decision should be revoked.
As mentioned above, Mr Al Mansori made such a request on 4 January 2017, but a delegate of the Minister declined to revoke the visa cancellation. This is the reviewable decision before the Tribunal, and the issue for me to decide is whether to revoke the visa cancellation.
The visa cancellation may be revoked if the Tribunal decides that Mr Al Mansori passes the character test as defined by s 501. I find, however, that Mr Al Mansori does not pass the character test on account of his serious criminal record, demonstrated by a National Police Certificate (the Certificate) recording the conviction of 10 October 2014[7] and the sentencing remarks of Judge Muscat in relation to that matter.[8] I note that Mr Al Mansori has accepted throughout that he does not pass the character test on account of his convictions.
[7] Exhibit R1, p 18.
[8] Exhibit R1, pp 18-23..
I may also revoke the visa cancellation if I am satisfied there is another reason why it should be revoked: s 501CA(4)(b)(ii) of the Act.
Ministerial Direction 65 (the Direction)
Section 499 of the Act authorises the Minister to give a written Direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of its powers. The Tribunal must comply with Directions issued under this provision.
Ministerial Direction 65, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Mr Al Mansori’s revocation request.[9] The Direction requires me to treat the following as primary considerations:
- The protection of the Australian community from criminal or other serious conduct;
- The best interests of minor children in Australia; and
- The expectations of the Australian community.
Each of these terms is elaborated upon in the Direction.
[9] Direction No. 65 – Migration Act 1958 – Direction under s 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.
The Direction requires that other considerations must also be taken into account: namely, international non‑refoulement obligations, the strength, nature and duration of ties to Australia, the impact on Australia’s business interests, the impact on victims and the extent of impediments likely to be experienced if Mr Al Mansori is removed.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to me in terms of the objectives of the Act and the character provisions, and the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non‑citizens of character concern are allowed to remain in Australia. It states that permission for non‑citizens to remain in Australia is a privilege conferred in the expectation that non‑citizens are and have been law abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my power[10] in this matter are that:
- the community expects that the Government can and should cancel visas of non‑citizens if they commit serious crimes in Australia;
- a non‑citizen who has committed a serious crime, including of a violent nature, should generally expect to forfeit the privilege of staying in Australia;
- sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
- Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non‑citizen who has lived in the Australian community for most of their life or from a very young age; and
- the length of time a non‑citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.[11]
With these principles in mind, I turn to consider the particular circumstances in this matter. I will do so within the framework of the Direction.
PRIMARY CONSIDERATION – THE PROTECTION OF THE AUSTRALIAN COMMUNITY
I have regard to the Government’s commitment to protect the community from harm as a result of criminal activity by non‑citizens, and acknowledge the Government’s view that remaining in Australia is a privilege conferred on non‑citizens in the expectation that they are law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.[12]
[12] Item 13.1 of the Direction.
I am to give consideration to the nature and seriousness of the non‑citizen’s conduct to date, and the risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Al Mansori’s conduct
The Direction calls on me to consider the nature and seriousness of Mr Al Mansori’s conduct, expressed to be criminal offending or other conduct. In this regard, the conviction that has caused Mr Al Mansori to fail the character test is not the only instance of criminal offending leading to conviction. Nor are the matters leading to conviction the only matters the subject of reports and records maintained by the South Australia Police (SAPOL). I am conscious that I must proceed with care in placing any weight on allegations of potentially criminal conduct that have not been proved.
I will first consider the circumstances of Mr Al Mansori’s conduct leading to criminal convictions.
The matters the subject of convictions
The circumstances of the conduct discussed below are drawn from the Certificate, the SAPOL records relied upon by the respondent,[13] a written statement provided by Mr Al Mansori and his oral evidence to the Tribunal. In relation to the 2012 and 2014 offences, I have also had careful regard to the remarks of the sentencing judges.
[13] Exhibit R2, pp 1-85.
The following consideration of the evidence as to the circumstances of Mr Al Mansori’s offending is ordered by reference to the date of the offence (in bold).
On 6 March 2008, when he was 22 years old, Mr Al Mansori was convicted for exceeding the speed limit by 15-29 kilometres per hour and fined $100.[14] The SAPOL records indicate the offence occurred on 29 November 2004.[15]
[14] Exhibit R2, p 6.
[15] Exhibit R2, p 6.
On 2 February 2006, Mr Al Mansori was convicted for disorderly behaviour, loitering and resisting police and a fine of $200 was imposed.[16] The SAPOL records indicate that Mr Al Mansori was influenced by alcohol and the offence occurred in the early hours of the morning on 10 September 2005. The records indicate that Mr Al Mansori was removed from a club on Hindley Street, Adelaide, after he was observed by police smashing a bottle on the ground inside the club. After being removed, Mr Al Mansori apparently continued his disorderly behaviour, continually yelling offensive words whilst “smashing his fist on a nearby galvanised iron fence”.[17] Mr Al Mansori was apparently requested on a number of occasions to cease loitering and refused to comply. He was subsequently arrested and whilst being arrested, he “violently resisted by jolting his body backwards and forwards in an attempt to break free from police grip”.[18] The police records further indicate that Mr Al Mansori was not interviewed in relation to this matter, due to his “violent and unpredictable behaviour”.[19]
[16]    Exhibit R2, p 7.
[17]    Exhibit R2, p 10.
[18]    Exhibit R2, p 10.
[19]    Exhibit R2, p 11.
In his oral evidence, Mr Al Mansori said that he was young at the time of this offence and was “drinking at that time”. He said he was drinking and “clubbing all the time every weekend”.
On 2 February 2006, Mr Al Mansori was convicted of failing to comply with a bail agreement and discharged without penalty. This related to the fact that on 10 September 2005 Mr Al Mansori entered into a bail agreement with the condition that he would not enter, attend or be in the vicinity of Hindley Street, Adelaide. On 11 November 2005, the Court ordered that the conditions of the bail agreement were to continue. However, he was subsequently arrested by police in the early hours of 17 December 2005, on Hindley Street, Adelaide.[20]
[20] Exhibit R2, p 16.
In his oral evidence, Mr Al Mansori indicated that at the time of this offence he was still very new to Australia and his English was poor. He said he had not understood that bail was continued after his court appearance in November 2005.
On 12 January 2007, Mr Al Mansori was convicted of disorderly behaviour and resisting police.[21] The SAPOL records indicate that this offence occurred late in the evening on Saturday 28 October 2006 when Mr Al Mansori swore loudly, placed his fist in front of his face trying to fight with police and tried to prevent police from affecting the arrest of other persons. The records further indicate that when police attempted to arrest Mr Al Mansori, he resisted them by “violently jerking his body in several directions and trying to break free of police restraining him”. Four officers and the use of capsicum spray were required to subdue and affect the arrest of Mr Al Mansori.[22] Mr Al Mansori pleaded guilty and was fined a total of $350 with respect to the two offences.[23]
[21]    Exhibit R2, p 22.
[22]    Exhibit R2, p 23.
[23]    Exhibit R2, p 95.
On 23 April 2007, Mr Al Mansori was convicted of driving under disqualification or suspension with the offence date being 14 November 2006.[24] He was fined $200. The SAPOL records indicate that this offence occurred in the early hours of the morning when Mr Al Mansori was stopped by police for a breath test, which was negative. However, police also conducted a driver’s licence check which revealed that he was disqualified from driving from 30 August 2006 until 28 February 2007 for breaching provisional conditions. At the time, Mr Al Mansori apparently advised police that he was not aware that his licence had been disqualified. Mr Al Mansori pleaded guilty to this offence and was fined $200.[25]
[24] Exhibit R2, p 5.
[25] Exhibit R2, p 100.
On 5 March 2008, Mr Al Mansori was convicted of possessing or using a prohibited weapon and fined $500.[26] This offence is recorded as having occurred on 9 February 2008. In his oral evidence, Mr Al Mansori indicated that this related to an extendable baton left at his place by a friend who had been a security guard. This weapon was apparently discovered by police when they searched his premises. Mr Al Mansori’s evidence in this regard is consistent with the SAPOL records. Mr Al Mansori pleaded guilty to this offence and was fined $500.[27]
[26] Exhibit R2, p 4.
[27] Exhibit R2, p 96.
On 15 March 2012, Mr Al Mansori was convicted of intentionally causing harm – aggravated and given a suspended sentence of two years and 10 months with a non‑parole period of 18 months and a two year good behaviour bond.[28] This offence occurred on 12 April 2009 and Mr Al Mansori pleaded guilty to the offence.
[28] Exhibit R2, p 3.
The sentencing judge, Judge Lovell, explained the circumstances of this conduct as follows:
During the evening of Sunday 12 April 2009, the victim, Mr Al Wazan, attended the Greater Union cinema complex at Arndale to watch a movie with a friend of his and a girl whom he knew as Cindy, but in reality was Ms Bui. He had been set up by Cindy who was friends with you, Mr Al Mansori. I have previously sentenced Ms Bui for her role in the attack that occurred on Mr Al Wazan. It was her role to make sure that the victim, Mr Al Wazan, was in that area that night.
Ms Bui had done this as your co‑accused, Mr Al Mosawi, believed that Mr Al Wazan was having a relationship with his female cousin, which was bringing shame to the family. Ms Bui prearranged with Mr Al Mosawi to have Mr Al Wazan attend at the location in order that the attack may be undertaken.[29]
[29] Exhibit R2, p 103.
The precise circumstances of the attack were the subject of a disputed facts hearing before the judge. In his ruling at that hearing, the judge observed as follows:
Mr Al Mansori was an unimpressive witness. On some matters he was not truthful. As I mentioned, generally speaking I found Mr Al Wazan a generally credible witness. I am satisfied that Mr Al Wazan was probably correct with his version of events.
…
While I largely reject what Mr Al Mansori said, I am not satisfied beyond reasonable doubt that he actually stabbed Mr Al Wazan. I will sentence him on the basis that he was aware that Hamza had the knife and may use it. I reject his evidence that he counselled him not to take or use the knife. However, I will not sentence him on the basis that he carried another knife and used it. I reject his version of events that Mr Wazan had a knife, although I am unable to reject his version of events that at some stage Mr Wazan had his arms around Hamza’s neck in some sort of bear hug.[30]
[30] Exhibit R4.
Accordingly, Mr Al Mansori was sentenced on the basis that he did not inflict any of the wounds on Mr Al Wazan personally, but was aware that Mr Al Mosawi had a knife with him.[31]
[31] Exhibit R2, p 105.
On 21 October 2010, Mr Al Mansori was convicted of two counts of damaging property and given a good behaviour bond of $500 on the basis that he be of good behaviour for 12 months.[32] The SAPOL records indicate these offences occurred on 16 September 2010. The relevant conduct consisted of smashing a perfume bottle and damaging a washing machine with a baseball bat, causing approximately $200 damage, and also hitting a bedroom door with a baseball bat causing approximately $200 damage. The SAPOL records indicate that when he was interviewed Mr Al Mansori said that he had become angry with his girlfriend because she had lost a lot of money gambling “so he started breaking things with a baseball bat”.[33]
[32] Exhibit R2, p 3.
[33] Exhibit R2, p 58.
In the course of his oral evidence, Mr Al Mansori claimed that the perfume bottle and washing machine both belonged to him anyway, which reduced the seriousness of his actions. However, the police records and Complaint indicate that the perfume bottle and washing machine belonged to his then partner, Ms Bui.[34] Mr Al Mansori pleaded guilty to the two offences and was given a bond of $500 to be of good behaviour for 12 months.[35]
[34] Exhibit R2, p 90.
[35] Exhibit R2, p 102.

On 6 March 2012, about a week before his 2012 conviction, Mr Al Mansori was convicted of disorderly behaviour, hindering police and resisting police and fined $1000.[36] The SAPOL records indicate that this offence occurred in the early hours of 28 November 2010 and Mr Al Mansori was affected by alcohol. The relevant conduct consisted of Mr Al Mansori behaving in a disorderly manner on Pulteney Street in Adelaide, by yelling, swearing, threatening violence and behaving in an aggressive manner. The records further indicate that Mr Al Mansori hindered police by running away, and resisted police by moving his body about, yelling profanities and trying to pull away and break free from police during the arrest procedure.[37] Prior to being arrested, Mr Al Mansori is also recorded to have threatened “to shoot all persons in the vicinity with a firearm that he was returning with”.[38] The SAPOL records further record that “the accused did not conform to a protracted and detailed interview due to his level of intoxication and belligerent behaviour towards police”.[39] Mr Al Mansori pleaded guilty to all three offences.[40]
[36]    Exhibit R2, p 2.
[37]    Exhibit R2, p 71.
[38]    Exhibit R2, p 71.
[39]    Exhibit R2, p 72.
[40]    Exhibit R2, p 99.
On 10 October 2014, Mr Al Mansori was convicted of cultivating a commercial quantity of a controlled plant, possessing prescribed equipment and breach of bond. His previously suspended sentence was revoked and he was given a head sentence of four years and four months (with a non‑parole period of two years and three months) which he is still serving.[41] Mr Al Mansori pleaded guilty to the charges of growing cannabis plants for sale and possessing hydroponic equipment.[42] The sentencing judge, Judge Muscat, explained the nature of this offending, on 30 January 2014, as follows:
On 30 January 2014 police officers attended at a house at Para Hills which you were occupying at the time. There were four rooms specifically dedicated to the indoor cultivation of cannabis plants. I have viewed the photographs tendered by the prosecution and they reveal a typical indoor hydroponic set‑up for the growing of cannabis plants. In total, police found 25 cannabis plants being grown at the house.[43]
[41]    Exhibit R1, pp 22-23.
[42]    Exhibit R1, p 20.
[43]    Exhibit R1, p 20.
He went on to observe:
This is a serious offence, carrying a maximum penalty of a fine of $200000 or imprisonment for 25 years, or both. All of the equipment seized by the police as well as the plants and dried cannabis will be forfeited to the Crown …
Your offending is made more serious because you committed it whilst you were subject to a suspended sentence. On 15 March 2012, you were sentenced for the crime of aggravated causing harm with intent to cause harm to another man.
As to the precise circumstances of the offending, the judge found:
The present offending occurred in the context of you being recruited by another person to live in a house specifically set up to grow cannabis plants.
I have heard evidence from you this morning as to the circumstances of your involvement in this offending. You had only recently returned from visiting your family in Iraq and found yourself homeless. A Lebanese friend of yours introduced you to a man named Dave, who you told me was a bikie and who you met at the Cross Keys Hotel on Port Wakefield Road, Cavan. You were offered the occupancy of a house, free of rent and any bills. You were told by Dave that the house was to be used to grow cannabis plants and that he wanted you to occupy the house and keep an eye on things for him. He told you that, if the police caught you, you were to say nothing to them. He said that you would be looked after in terms of accommodation and being provided with the services of a lawyer in the event of the police charging you.
I accept that you were not involved in the setting up of the four rooms for the cultivation of the cannabis plants; other persons attended to that. However, I do not accept your evidence that you essentially stayed out of those rooms and had nothing to do with the care of the plants. I am satisfied that your role was to occupy the house so as to give it the appearance of legitimacy and, from time to time, to keep an eye on the plants and tend to any needs. Given the set‑up at the house, there would have been very little for you to do in that regard except perhaps fill the water reservoirs as required.
For your role, you were to receive $5000 in cash. It was your intention to send $3000 of that to your family in Iraq and keep the balance for your own needs, such as accommodation and so on.
You were clearly used by those involved in the commercial cultivation of these plants. …
I accept your evidence that you were in desperate times when you were approached. You were clearly taken advantage of and … once you were in and the longer you remained in the house, the harder it became to extricate yourself.[44]
[44] Exhibit R1, p 21.
With respect to the breach of the suspended sentence, the judge observed:
You had been given the opportunity to reform by a judge and you have failed to do so.
During his oral evidence before me, Mr Al Mansori appeared to accept that he had not been truthful with the Court as to whether he entered the rooms in which the cannabis plants were located. He also added that he was using cannabis at that time. Consistently with the judge’s remarks, he indicated that he had accepted the offer to live in this house because he was “desperate”. He said he had recently returned from visiting his family in Iraq and had no job and nowhere to live.
In the course of his evidence, when Mr Al Mansori was questioned about the circumstances surrounding particular offences, he frequently indicated that he was younger at the time, had been drinking, and due to the lack of family support/supervision, was “hanging out with whoever I want”.
The respondent contends that the offences for which Mr Al Mansori was convicted are clearly serious offences of the type identified by the Direction, and I accept that submission. Mr Al Mansori has not committed offences of the most serious kind, and a number of the offences that he has committed do not involve violence. However, his April 2009 offence is clearly a very serious one, which involved him being a knowing and willing party to a stabbing in the course of which serious injuries were inflicted on the victim. Mr Al Mansori did not commit the stabbing himself but helped facilitate it, thus showing a propensity to be involved in violent actions resulting in serious injuries to others. In addition, a number of his other offences involve an element of violence and suggest he is unable to control his aggressive impulses when he is angry or intoxicated. He inflicted serious property damage with a baseball bat in 2010 and has been violent toward police on numerous occasions, generally whilst intoxicated. Whilst his most recent offence was not a violent one, there is also a trend of escalation in Mr Al Mansori offending, toward serious and more violent offending.
Further, as observed by the sentencing judge, the fact that Mr Al Mansori’s last offence did not involve violence does not prevent it from being a serious offence. I must have regard to the potential penalty and the potential harm to the community caused by the dissemination of illegal drugs, including cannabis.
Given the nature of Mr Al Mansori’s offending, in particular the April 2009 offence and his most recent offence, clearly the principle expressed in the Direction at 6.3(3) (that a non‑citizen who commits a serious crime including of a violent nature should generally be expected to forfeit the privilege of staying in Australia) is relevant.
Further, as required by the Direction at item 13.1.1, I must have regard to the sentence imposed by the Courts. For his most recent offence, the judge sentenced Mr Al Mansori for 18 months on the charge of cultivating cannabis plants with that sentence being reduced by six months on account of him pleading guilty. The judge ordered that this sentence be served cumulatively upon the revoked suspended sentence with the result that Mr Al Mansori was to be in prison for four years and four months with a non‑parole period of 18 months. The length of this sentence underlines the seriousness of Mr Al Mansori’s offending.
Clearly the nature and frequency of Mr Al Mansori’s other offending is also highly relevant. It is of concern that Mr Al Mansori committed his first offence at age 19, having arrived in Australia approximately three years earlier. He subsequently offended regularly, with the longest break between offences being between November 2010 and January 2014 (although on the material before me he took up residence in the Para Hills house containing the cannabis plants well before these were discovered by the police in January 2014). He has repeatedly failed to comply with restrictions placed upon him in exchange for more lenient treatment, and failed to reward trust or leniency afforded to him by continuing to offend. Examples are the occasions when he drove while disqualified, failed to comply with conditions on his bail agreement, and, most seriously, committed a further serious offence whilst subject to a suspended sentence for an earlier offence.
Overall, I consider that Mr Al Mansori has shown an unwillingness or inability to change his behaviour in response to warnings, punishments or adverse consequences for himself or the victims of his offending. In addition to the frequency of his offending and the fact that it has tended to become more serious, the cumulative effect of his repeat offending is clearly highly relevant.
Other recorded incidents
As I have alluded to, the SAPOL records also make reference to other occasions when Mr Al Mansori has come to the attention of police, but no conviction resulted. However, given the conclusions I have reached based solely on the offences for which Mr Al Mansori has been convicted, I have not found it necessary to place any weight on this material. In other words, the conclusions I have reached are based solely on the conduct for which Mr Al Mansori has been convicted.
The risk should further offences be committed
In accordance with the Direction, my consideration of the risk should further offences be committed must reflect an assessment as to the potential harm to the Australian community should the conduct be repeated, and also the likelihood of Mr Al Mansori engaging in further criminal or other serious conduct.
As to the first limb, as I have already indicated, I do not regard Mr Al Mansori’s conduct as being of the most serious kind, as it has not involved him actually personally inflicting physical harm on another person. However, his offending has shown a propensity for violence when angry or intoxicated. He has also shown a willingness to become involved in serious offending by others which involves the infliction of violence and the cultivation and trafficking of cannabis.
Having regard to his history of offending and the nature of that offending, I consider there is a risk of Mr Al Mansori committing further offences of a similar kind and some risk of him committing more serious offences. Of most concern is the risk that he may become involved in further offending with a violent aspect, whether he is the ultimate perpetrator or not. There is a clear risk that if he did engage in such further offending, further serious harm could result, such as that caused to the victim of the April 2009 incident, who the judge found, “had nightmares” and had suffered “much pain and grief”.[45] I consider the potential harm to the Australian community should conduct of that nature be repeated would be serious.
[45] Exhibit R2, p 104.
As to the likelihood of Mr Al Mansori engaging in further criminal conduct, there is very little before me which assists in my consideration of this issue. In contrast to some matters, I do not have the benefit of any medical or psychological opinion as to the likelihood of Mr Al Mansori reoffending. Mr Al Mansori has submitted a certificate indicating that he completed a “Kairos Short course in Christianity and Leadership Based on Christian Principles” between 22 and 25 September 2015.[46] He has also provided statements from friends indicating that they do not consider he will engage in further crimes.[47] However, it is not clear that any of those who have made such statements are fully aware of Mr Al Mansori’s offending history, or that the confidence they have expressed is soundly based.
[46] Exhibit R1, p 52.
[47] Exhibit A3.
In his oral evidence, Mr Al Mansori indicated that at the time many of his offences were committed he was young and had no family support. He said he got into the wrong crowd, was subject to negative influences and, at times, was also under financial stress, such that he was more susceptible to making bad decisions. Having now been in prison and having found out what prison was like, he said he was motivated to avoid further offending. He said he wanted to get a job and establish a stable life in Australia and requested that he be given a second chance. He said he was now motivated to avoid further offending and mixing with the wrong people. He had an offer of employment as an electrician’s apprentice following his release from prison and a friend had agreed to allow him to stay with him.
However, Mr Al Mansori is only 31 years old now, and his most recent offence was committed in early 2014. As he was imprisoned in October 2014, he cannot point to any extended period when he has been at liberty and has not reoffended. Further, many of the other factors which he says contributed to his offending have not changed. He still has no family support in Australia and is likely to be in a financially precarious situation upon his release from prison. He has not expressed an intention to entirely avoid alcohol or drugs and whilst he expressed an intention not to mix with the wrong people, he expressly indicated that he would continue to associate with his ex‑partner Ms Bui. I note that in 2015, Ms Bui was convicted of assisting another offender who committed murder.[48]
[48] R v Bui [2016] SASCFC 53.
Aside from Mr Al Mansori’s assertions and assurances, there is no medical or other evidence before me suggesting that Mr Al Mansori has been rehabilitated or has otherwise changed, or that there is any other concrete reason why he would be unlikely to repeat his past conduct. In circumstances where, as I have explained, many of the factors which appear to have contributed to his offending are likely to remain present upon his release from prison, I have concluded that the risk of Mr Al Mansori committing further similar offences in the future is high and there is also some risk of him committing more serious offences.
In reaching that conclusion, I have taken into account that parts of Mr Al Mansori’s evidence were rejected by both Judge Muscat and Judge Lovell, and there were also aspects of his evidence before me which were inconsistent with other evidence. One example was his evidence that the washing machine and perfume bottle which he damaged with a baseball bat belonged to him, which is inconsistent with the contemporaneous SAPOL records. As I do not consider all of Mr Al Mansori’s evidence to be reliable, I place less weight on his assurances as to his future conduct than I otherwise may have. In addition, I consider that in the context of the proceedings relating to the 2012 and 2014 convictions, and also in his evidence before me, Mr Al Mansori has consistently demonstrated a tendency to dishonestly minimise the nature of his offending, in an attempt to avoid the consequence of it. That tendency also significantly erodes the value of his assurances that he will not further offend. For these reasons, I have ultimately given those assurances little weight.
Having regard to the nature of his past offending and the harm which would result if this offending were to be repeated, I have formed the view that the risk posed by the nature of Mr Al Mansori’s offending in combination with the likelihood of it being repeated is a risk which the Australian community would regard as unacceptable. In reaching that conclusion, I have paid particular regard to what I consider the reasonably high risk of Mr Al Mansori committing further offences with a violent aspect.
PRIMARY CONSIDERATION: THE BEST INTERESTS OF MINOR CHILDREN AFFECTED BY THE DECISION
Mr Al Mansori has no biological children in Australia. However, he does have a relationship with the three children of his former partner, Ms Bui, which the respondent conceded was relevant in the context of this consideration. Those children are aged 17, 16 and 15 respectively and I accept on the evidence that during the period while Mr Al Mansori and Ms Bui were in a relationship and in particular whilst they were cohabiting, Mr Al Mansori had a reasonably close relationship with those children.
It is unclear on the evidence when Mr Al Mansori and Ms Bui started and ended their relationship and precisely when they were cohabiting. It appears they were living together at Paralowie when Ms Bui’s property was damaged in 2010. In a written statement Ms Bui has said they became a couple in approximately 2008 although Mr Al Mansori gave evidence that they became a couple significantly later than this. Ms Bui said they ended their relationship in 2012. It is possible on the evidence that Mr Al Mansori had a high level of contact with the children for a maximum period of about four years, during which time he was a father figure to them.[49] In addition, Mr Al Mansori gave evidence that he regularly speaks to one or more of the children when they happen to be present while he is speaking to Ms Bui on the telephone, and the oldest child sends him letters occasionally. He last spoke to one of the children two weeks before the hearing, and received a letter about two months before the hearing.
[49] Exhibit R1, p 57.
However, Mr Al Mansori also acknowledged that subsequent to his relationship with Ms Bui breaking down, she had formed a new relationship. Counsel for the respondent also pointed out that in R v Bui, handed down on 13 May 2016,[50] the Court of Criminal Appeal noted a submission made on Ms Bui’s behalf that her children “needed her, all being at school and having no father figure”.[51]
[50] [2016] SASCFC 53.
[51] At [32].
Mr Al Mansori also acknowledged that as Ms Bui now had a new partner, he could not “interfere” with the family and that the nature and frequency of his contact with the children was different now than it had been while he and Ms Bui were cohabiting. He acknowledged that the children had not come to visit him whilst he was in prison.
While I have had the benefit of a statement of Ms Bui, I have not had the benefit of hearing oral evidence from her or any evidence from any of her children. Her sister has given a brief statement indicating that Mr Al Mansori “has cared for my sister’s children with respect and as much care as an uncle would, the kids relate to him and loved his company”.[52]
[52] Exhibit R1, p 60.
Having regard to this evidence, I accept that if Mr Al Mansori is removed from Australia, this will have some impact on Ms Bui’s three children, and may cause them some distress. However, he is not their biological father and only cohabited with them for a relatively limited period of about four years at the most on the evidence before me. The children have not seen Mr Al Mansori since he was incarcerated in 2014 and appear to have had relatively limited contact with him since then. The children are not in any way financially dependent on Mr Al Mansori and have not been so for some time. As he is not a primary care giver, has not played a parental role for some years and does not contribute financially to them, I consider that in practical terms the impact on them of Mr Al Mansori being removed from Australia would be negligible.

I accept that Mr Al Mansori’s removal may have an adverse emotional impact on one or more of the children, and deprive them of the opportunity to continue a relationship with him in the manner they may have preferred. Whilst it may be possible for them to have some contact with him from Iraq, via social media or other means, I accept that this will not be equivalent to the contact they may have had with him if he had remained in Australia. However, I regard these adverse effects as being limited and not comparable to being separated from a parent. Even if Mr Al Mansori was to remain in Australia, on the evidence I consider that the children’s relationship with him is likely to be in the nature of the relationship they would have with a family friend they see occasionally rather than the relationship they would have with an uncle or father figure. Whilst he claims to have been a father figure to the children in the past, Mr Al Mansori has essentially conceded that he does not fulfil that role now and is unlikely to do so in the future.
Accordingly, I consider that the best interests of Ms Bui’s children weigh slightly but not heavily in favour of Mr Al Mansori remaining in Australia.
PRIMARY CONSIDERATION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Item 13.3(1) of the Direction states:
The Australian community expects non‑citizens to obey Australian laws while in Australia. Where a non‑citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non‑citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non‑revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The respondent submits that while the Australian community may have greater tolerance for a person who has lived in Australia for many years than someone who has recently arrived, in Mr Al Mansori’s case that tolerance would have been exhausted when regard is had to the number of convictions, frequency of offending and the risk of reoffending. The respondent contends that the Australian community would expect that Mr Al Mansori’s visa would be cancelled.
I consider, having regard to the objectives of the Direction, the principle set out in the Direction and the explanation of the meaning of the concept of the “expectations of the Australian community” set out in the Direction that this is a case where the community would expect the visa cancellation not to be revoked. I reach this view having regard to my finding that Mr Al Mansori presents an unacceptable risk to the community in light of the nature of his offending and likelihood that it may be repeated. In my view, the Australian community would be likely to consider that, given the nature and frequency of his offending, Mr Al Mansori has forfeited the privilege of remaining in Australia.
OTHER CONSIDERATIONS: STRENGTH, NATURE AND DURATION OF TIES
I take into account that Mr Al Mansori arrived in Australia at the age of 16 and has resided here since then. He returned to Iraq briefly twice (in 2013 and 2014).
Mr Al Mansori has worked in various capacities during his time in Australia, including for an entity known as HHH Fresh Produce. I have had regard to written statements provided by his work colleague, Ms Nguyen, and also Mr Saeide who has indicated a willingness to employ him upon his release from prison.[53] Mr Saeide is an electrical contractor and Mr Al Mansori indicated that Mr Saeide was willing to give him an apprenticeship.[54]
[53] Exhibit R1, p 55.
[54] Exhibit R1, p 55.
The Direction requires me to have regard to how long Mr Al Mansori has resided in Australia, including whether he arrived as a young child. The Direction provides that less (favourable) weight should be given when the non‑citizen began offending soon after arrival and more (favourable) weight to time Mr Al Mansori has spent contributing positively to the Australian community.
I consider that Mr Al Mansori’s circumstances fall somewhere between the two ends of this spectrum. He has spent a substantial amount of time residing in Australia, but did not arrive as a small child. He has lived his entire adult life in Australia, but still has much of his life ahead of him. Mr Al Mansori’s offending began in 2004, three years after his arrival in Australia and it escalated to involvement in a violent offence in 2009. His offending has been reasonably continuous since 2004, although some of the offending was minor.
Mr Al Mansori clearly has some good friends in Australia and appears to have maintained a relationship with Ms Bui’s extended family. He has volunteered at the Australian Al‑Thakalain Islamic Centre[55].
[55] Exhibit R1, p 51.
However, Mr Al Mansori has no family in Australia and no stable employment history in Australia. Accordingly, I have concluded that his existing ties with Australia are relatively weak and he has stronger personal ties to Iraq. There is continual reference in the material to his desire to send money to his family in Iraq whom he visited in 2013 and 2014. It is my understanding that he is in regular contact with his family and I consider that his connection and commitment to his family has remained strong despite the fact he left Iraq when he was 16.
Accordingly, Mr Al Mansori has no immediate family who will be adversely impacted if he is removed from Australia. Whilst I accept there may be some impact on Ms Bui, her family and perhaps some of his other friends, I expect that to be minimal. Mr Al Mansori’s strongest family ties are with his family in Iraq.
OTHER CONSIDERATIONS: EXTENT OF IMPEDIMENTS IF REMOVED
During his oral evidence, Mr Al Mansori did not dispute that he would receive support from his family if he returned to Iraq. He explained that as he was no longer able to provide funds to his family following his incarceration, one of his brothers had ceased studying and commenced working but the other brother was still studying. As the family has sufficient means to support one of Mr Al Mansori’s brother studying whilst the other works, I expect the family could also support Mr Al Mansori. In addition, Mr Al Mansori did not suggest that he would not be able to obtain some form of work in Iraq, although he said this would not be as remunerative as work in Australia.
Although I accept that he has become “westernised” since living in Australia, Mr Al Mansori spent his childhood and early adolescence in Iraq and has maintained contact with his family. He is a Shia Muslim and did not suggest that he would face any language barriers upon return to Iraq. I do not consider there are substantial language or cultural barriers to be faced by Mr Al Mansori if removed from Australia to Iraq in establishing himself and maintaining basic living standards.
As to the availability of social, medical and/or economic support available in Iraq, I accept that the economic and medical support available to Mr Al Mansori in Iraq is likely to be vastly inferior to that available in Australia. However, I consider that he is likely to have good social support given that all of his family live in Iraq.
OTHER CONSIDERATIONS: INTERNATIONAL NON‑REFOULEMENT OBLIGATIONS, THE IMPACT ON AUSTRALIAN BUSINESS INTERESTS, IMPACT ON VICTIMS
International Non‑refoulement obligations
Item 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non‑refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non‑refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
Whilst Mr Al Mansori was previously granted a subclass 866 protection visa, that visa has now lapsed. It is not disputed that it is open to Mr Al Mansori to make a fresh application for a protection visa, although Mr Al Mansori has not actually made such an application.
The respondent submits that because Mr Al Mansori is not barred from making a protection visa application, it is unnecessary for the Tribunal to determine whether any international non‑refoulement obligations are owed to him for the purposes of determining whether the cancellation of his visa should be revoked. Having considered the terms of the Direction and the relevant authorities, I accept that submission.
In Minister for Immigration and Border Protection v Le [2016] FCAFC 120, the Full Court held:
In determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused.[56]
[56] Minister for Immigration and Border Protection v Le [2016] FCAFC 120, at [61].
The respondent has also drawn my attention to a recent case before the Tribunal where this principle was applied: BNVM and Minister for Immigration and Border Protection [2017] AATA 621. In BNVM, the applicant applied for a review of a decision that refused to grant him a bridging visa. At the time of the decision, BNVM also had a protection visa application that was still pending. Deputy President Kendall held:
Australia’s non-refoulement obligations to BNVM, if any exist, can validly be met through the protection visa process or through the exercise of powers under s 195A. In this case, BNVM’s protection visa application has yet to be decided.
In these circumstances, the Tribunal finds that any issues in relation to non-refoulement obligations that exist are not relevant to the matter before it.[57]
[57] BNVM and Minister for Immigration and Border Protection [2017] AATA 621, at [90]-[91].
In his oral evidence, Mr Al Mansori indicated that he intended to apply for a protection visa and has given instructions to his lawyer to do so. However, he also indicated that he could not organise for a protection visa application to be lodged on his behalf because he could not pay the associated application fee. Nevertheless, when asked whether he still intended to lodge such an application, he indicated that he still intended to do so.
Both Mr Al Mansori and the Minister readily conceded that Mr Al Mansori was not barred from applying for a protection visa and because that option is open to him, I am satisfied that Australia’s international non‑refoulement obligations to Mr Al Mansori will be adequately met through the protection visa process. I therefore consider it unnecessary to decide whether any international non‑refoulement obligations are owed to him for the purposes of the matter before me.
Impact on Australian business interests, impact on victims
I have already referred to Mr Saeide’s offer to employ Mr Al Mansori on his release from prison, however I note this undertaking was given in October 2015 and it is unclear whether Mr Saeide’s position has changed. Accordingly, I place limited weight on this factor, noting that Mr Saeide has not indicated in any event that he would obtain any particular benefit from employing Mr Al Mansori.
I have no evidence from the victims of Mr Al Mansori’s offending, in particular the victim of the April 2009 offence, as to the impact on them of a decision not to revoke the cancellation. However, I have had regard to the remarks of the sentencing judge about the impact of the violent assault on the victim in that matter.
OVERALL ASSESSMENT
I am to decide if there is any reason why the decision to cancel Mr Al Mansori’s visa should be revoked, having regard to the terms of the Direction.
In this regard, I have found that the primary consideration of the protection of the Australian community, including the nature and seriousness of Mr Al Mansori’s offending and the risk to the community should Mr Al Mansori reoffend is such that I consider the risk posed by Mr Al Mansori to be unacceptable. In respect of another primary consideration, namely, the expectations of the Australian community, I also consider that, guided by the Direction, Mr Al Mansori’s case is one where the community would expect the visa to be cancelled.
While I have had regard to the best interest of Ms Bui’s children, I do not consider that their interests will be significantly adversely affected by refusing to revoke the visa cancellation, and this factor does not outweigh the other primary considerations.
I have also concluded that Mr Al Mansori has relatively weak social and other ties to Australia and the impediments to be faced by him upon his return to Iraq are not so significant as to outweigh the primary considerations falling in favour of non‑revocation. As I have explained, the other considerations discussed immediately above are of limited relevance in the circumstance of this matter, and do not weigh against non‑revocation.
In these circumstances I am not satisfied that there is another reason to revoke the cancellation of the visa, and will affirm the decision under review.
DECISION
The decision under review is affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

.........[Sgd]...................................
Associate
Dated: 19 May 2017

Date(s) of hearing: 8 May 2017

Applicant: In person

Counsel for the Respondent: Mr R Prince

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	8 May 2017
Applicant:	In person
Counsel for the Respondent:	Mr R Prince
Solicitors for the Respondent:	Australian Government Solicitor