Ali and Minister for Home Affairs (Migration)

Ali and Minister for Home Affairs (Migration) [2019] AATA 417 (13 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7616
Re:Mohammad Ali
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:13 March 2019
Place:Sydney

The decision under review is affirmed.
.......................................................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION - non-revocation of mandatory cancellation of Class BS Subclass 201 Partner (Residence) visa – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
13 March 2019
INTRODUCTION

On 31 January 2018, Mr Mohammed Ali (‘the Applicant’) had his Partner (Residence) (Class BS) Subclass 801 – Partner visa cancelled on character grounds by a delegate of the Minister for Home Affairs (‘the Respondent’ or ‘the Minister’).
After receiving an application from the Applicant seeking the revocation of the cancellation of his visa, a delegate of the Respondent decided, on 19 December 2018, not to revoke the cancellation decision. The Applicant applied to this Tribunal for a review of the delegate’s non-revocation decision on 24 December 2018.
BACKGROUND
The Applicant is a citizen of India. He is currently 29 years of age. The Applicant first arrived in Australia on 18 February 2008 when he was 18 years of age.
The Applicant‘s criminal history discloses two relevant offending events. They comprise:
·On 14 March 2013, the Applicant was dealt with in the Melbourne Magistrates Court for a failure to answer bail previously granted to him. For this offence he was fined the sum of $500 with, apparently, no conviction being recorded. In the Applicant’s National Police Certificate[1], there is also recorded under the date 14 March 2013 – a reference to “Robbery” with a recorded “Court Result” of “Without conviction, adjourned to 12/09/2014”. There is no further reference to this robbery offence in the Applicant’s National Police Certificate. For the purposes of this decision, I will treat the Applicant’s offending that was dealt with on 14 March 2013 as comprising only the failure to answer bail offence.
[1] Exhibit 4, s501 G Documents, G02, pages 28-29.
·On 22 May 2017, following a finding of guilty at the conclusion of a contested trial before judge and jury, the Applicant was, pursuant to the jury’s verdict, found guilty on 11 counts of “Deal With Identity Information to Commit etc Indictable Offence (11 counts)”. The Applicant came before the Downing Centre District Court for sentencing on 22 May 2017 and was sentenced as follows:
o“Count 1: Imprisonment 3 years 6 months
oCount 2: Imprisonment 3 years 6 months
oCount 3: Imprisonment 4 years
oCount 4: Imprisonment 4 years
oCount 5: Imprisonment 3 years 6 months
oCount 6: Imprisonment 4 years
oCount 7: Imprisonment 4 years
oCount 8: Imprisonment 3 years 6 months
oCount 9 Imprisonment 3 years 6 months
oCount 10: Imprisonment 3 years 6 months
oCount 11: Imprisonment 4 years.
·For the immediately preceding offending, the respective custodial head terms were aggregated and the learned sentencing judicial officer sentenced the Applicant to “…a total aggregate term of imprisonment of 7 years with a non-parole period of 3 years and 6 months.”[2]
[2] Ibid, G02, page 28.
ISSUES
Pursuant to s 501CA(4) of the Migration Act 1958 (‘the Act’) the Minister is able to revoke the decision to cancel the Applicant’s visa under s 501(3A) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
It is not disputed and indeed there is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[4]
[3] [2018] FCAFC 151.
[4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[5] I will address each of these grounds in turn.
[5] Ibid.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have ‘a substantial criminal record’. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which 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’.
The Applicant concedes, in both his written submissions[6] and at the hearing, that he does not pass the character test. To my mind, this concession is properly made. Looking to the weight of the Applicant’s criminal record as summarised above, he has been sentenced to a term of imprisonment for seven years.
[6] Exhibit 1, Applicant's Statement of Facts, Issues and Contentions (“SFIC”), undated, but filed on 11 February 2019, page 1, [2].
As this sentence had exceeded the threshold of 12 months’ imprisonment or more as defined in the Act, I find that the Applicant does not pass the character test. Accordingly, the Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
ISSUE 2: IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a visa under s501CA (‘the Direction’) applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[7]
[7] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being ‘other’ considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[9]
[8] [2018] FCA 594.
[9] Ibid at [23]; Also to be noted: on 28 February 2019, the former applicable Ministerial Direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA(‘Direction 65’) was revoked and was replaced by Ministerial Direction 79. Ministerial Direction 79 was made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019. The decision in this matter is due for publication by 13 March 2019 in accordance with the 84 day time limit in s500(6L) of the Act. As this decision is intended to be published after 28 February 2019, Ministerial Direction 79 will be applied.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(1) of the Direction provides as follows:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the offending
The gravity of the Applicant’s offending that came before the District Court of New South Wales on 22 May 2017 can be readily gleaned from the sentencing remarks of the learned sentencing judge (Judge Toner SC). Significantly, to my mind, his Honour cited 11 specific “set of facts” which had, prior to the date for sentencing, been agreed between the accused (the Applicant in this matter) and the prosecution:
“SENTENCE
HIS HONOUR: Mohammed Ali stands to be sentenced in relation to 11 offences, each of which are contrary to s 192J of the Crimes Act New South Wales, that offence attaches the maximum penalty of 10 years imprisonment and there is no standard non-parole period attached to it.
Mr Ali came before me and a jury at trial. On 9 February 2017 he entered pleas of not guilty to what were then 12 counts on the indictment. He stood his trial in this court at a trial which commenced on 13 February 2017. There had been an earlier jury empanelled but it was discharged for reasons which do not matter now, save for this it can certainly be said that what caused it was not the accused or anything he did or his lawyers did.
On 23 February 2017, the jury returned verdicts of guilty on the first 11 counts on the indictment but not guilty on count 12. He thus as I say stands to be sentenced in relation to those 11 counts.
Agreement has been reached on the set of facts which is consistent with the jury verdict. I have read those facts and I agree that they properly represent a sensible foundation for the jury’s verdicts on each of those 11 counts and propose to find those facts beyond reasonable doubt.
1.    That the offences committed by Mr Ali were committed in the context of an organised enterprise involving a number of people, including Mr Ali…
2.    Mr Ali knew of the roles of [the co-offenders].
3.    Mr Ali knew that [co-offender 1] and [co-offender 2] were the creators and printers of fake identification.
4.    Mr Ali knew that the aim of the scheme was that the fake identification (for which Mr Ali provided the identification details that were used on the fake identification) was to be used to open bank accounts for the purposes of gaining a financial advantage.
5.    Mr Ali knew that [co- offender 3] had contact with the ‘runners’ on including [co-offender 4] and [co-offender 5].
6.    Mr Ali was in contact with [co-offender 3] during which [co-offender 3] gave Mr Ali information about what the “runners” were doing, including that [sic] details of their arrest. This supports the submission that Mr Ali knew of the roles of the other participants in the fraudulent activity.
7.    That Mr Ali knew that [co-offender 4] had been arrested on 7 January 2017, and that [co-offender 5] had been arrested at Caringbah on 30 January 2015, and which shows knowledge on the part of Mr Ali that a person/s were involved in opening or attempting to open bank accounts.
8.    Mr Ali committed each of the offences for financial gain of himself or another/others.
9.    Mr Ali provided the identification information on each occasion with the specific intention of facilitation (progressing, making easier) the commission of a fraud, namely, obtaining a benefit by deception.
10. All of the identification information supplied by Mr Ali in the “draft email” counts (3, 4, 6, 7 and 11) relate to fake identities.
11. That Mr Ali was the ‘male voice’ in each of the Hindi and English calls.”[10]
[my underlining]
[10] Exhibit 4, s501 G Documents, G02, pages 38-40.
Judge Toner SC made further observations about the Applicant’s offending which can be relevantly stated as follows:
“It is important to emphasise in these cases that the nature of the enterprise which they represent is such which fundamentally jeopardises an economic foundation of our community. The capacity of financial institutions in particular, or credit agencies, to be able to rely upon accepted means of proof of identity, is fundamental to the efficient operation of the system. Beyond that as well, the reliability of forms of identification also plays an important role in the day to day running of our community for all sorts of reasons where the proof of identity is required, whether it be for entry into secure structures, or upon reasonable demand from authorities for proof of identification.
…
In this case, what was being generated were false driver’s licences and anybody who moves about our community would well understand that driver’s licences are perhaps the most common means for adults to identify themselves.
Thus these crimes jeopardise both the reliability of that instrument, but also casts suspicion upon their efficacy if it is allowed to go unchecked and unpunished. Accordingly in the circumstances of this type of crime, the penalties that ought to be imposed, ought to be as the law says condign.
It is a little surprising perhaps, particularly given the nexus between the reliability of instruments of identification and present concerns about terrorist activities that the maximum penalty for this particular offence is only 10 years. It seems to have escaped the attention of authorities. I should say that I am not usually one to barrack for increased penalties but this one seems a little anomalous.
…
These offences were committed between 17 December 2014 and 10 February 2015, which is about two months but clearly the activities of this offender and those who were in effect “employed” by him was intense.
…
Turning to the subjective features of this particular offender he is still a relatively young man, he is now only 28, he has two young children. I note as an aside that he is not an Australian citizen and the overwhelming probability is that at the conclusion of the non-parole period obviously in this case he will be deported but I say that only to note it, it plays absolutely no role in the sentencing process that I must now undertake.
…
He, I suspect, also represents good prospects of rehabilitation. He continues to maintain his innocence. I suppose it would be marginally to his benefit should he now fess up so to speak but there would be more than just a hint of hypocrisy about it as well…
He pleaded not guilty and still maintains his innocence.
It seems however to me that there was an overwhelmingly powerful case against him from the beginning. One of the advantages that he has that he was very ably represented during the course of the trial. Perhaps he came closer than he should have for that reason and I note that he was found not guilty in relation to one matter which I think is probably because of the ability of his counsel rather than any other factor.
In my opinion this was a case where he would have been better served, entering a plea at the earliest opportunity but he did not take that option. Thus he stands to be sentenced. In those circumstances there are obviously no discounts available to him, thus none will be applied to the sentence which otherwise should be imposed.
…Clearly also as the facts demonstrate some of the offences were more successful, if I can use that word, than others in terms of achieving the goal that each had, namely stealing money off banks.
It seems to me however that the moral culpability is about the same in relation to each matter because no doubt each activity was commenced with the same ambition in mind…
There should also be some degree of accumulation in relation to these matters to reflect the proposition that one, each was a separate offence and a separate activity, albeit within the context of a course of criminal conduct and two; the length of time over which this enterprise took place to reflect amongst other things principles of totality as described by the High Court in a number of cases…”[11]
[my underlining]
[11] Ibid, G02, pages 56-60.

Paragraph 13.1.1(1) of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. Relevantly (for present purposes), the factors are these:
(a)…
(b)…
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
With specific reference to subparagraph (c) of paragraph 13.1.1(1) of the Direction, I am mindful that the tenor of this subparagraph involves attacks upon members of the community who are at some kind of disadvantage and who are thus deemed to be “vulnerable” for the purposes of this subparagraph. While I accept that the victims of the Applicant’s offending were not necessarily aged, infirm or disabled, they were members of our community who are fully entitled to rely upon the integrity of our banking system for the purpose of depositing and accessing their own funds and to not otherwise be exposed to unlawful activity whereby their identities could be stolen and deceptively misapplied.
In this sense, every member of our community who utilises and/or relies upon the banking or financial system can be, to an extent, regarded as a “vulnerable member of the community” for the purposes of this type of offending, which does not discriminate between those subject to disability or other infirmity and those who are otherwise fit and well. In a similar way, this offending does not discriminate between those members of our community who are of modest financial means and those who are well-off. I could not imagine a sentencing judicial officer, for sentencing purposes, taking into account whether the financial loss or exposure was suffered by a wealthy individual or a less affluent member of our community, or indeed, a given financial institution.
To the extent this subparagraph (c) can be applied as a gauge of the nature and seriousness of the Applicant’s offending, I am of the view that it favours a characterisation of the conduct as indeed very serious offending.
With specific reference to subparagraph (d) of Paragraph 11.1.1(1) of the Direction, the Respondent contended, “…that in considering the nature and seriousness of the Applicant’s offending, significant weight should be given to the sentence imposed by the court for the Applicant’s criminal offences.”[12] I am of the view that this contention is well-made and is readily supported by the abovementioned sentencing remarks of Judge Toner SC, who said these things about the nature and severity of the sentence he imposed:
·Accordingly, in the circumstances of this type of crime, the penalties that ought to be imposed ought to be as the law says, condign;[13]
·…the maximum penalty for this particular offence is only 10 years…I should say that I am not usually one to barrack for increased penalties but this one seems a little anomalous;[14]
·…There are obviously no discounts available to him, thus none will be applied to the sentence which otherwise should be imposed.[15]
[12] Exhibit 3, Respondent’s SFIC, page 8, [32].
[13] Exhibit 4, s 501 G Documents, G02, page 57.
[14] Ibid.
[15] Ibid, page 59.
Thus, it can be seen that the respective sentences imposed on the Applicant for each of the 11 counts on which he was found guilty on the jury’s verdict were not the subject of any discount or other favourably applied measure of reduction of the head sentence or decrease in any non-parole period. On the contrary, Judge Toner SC thought the seriousness of the Applicant’s offending constituted an anomaly that (1) warranted legislative amendment to the maximum penalty for this type of offending, (2) absolutely precluded any possibility of a favourable discount on any aspect of the Applicant’s sentencing regime and (3) was such as to warrant the imposition of a sufficiently significant penalty to be in direct proportion to the culpability of the Applicant’s role in this very serious offending.[16]
[16] Ibid, page 57.
As observed by Senior Member Poljak of this Tribunal:
“The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him…Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.”[17]
[17] PNLB and Minister for Immigration and Border Protection [2018] AATA 162, paragraph [22]. This observation was made in the context of subparagraph 13.1.1(1)(c) of paragraph 13.1.1(1) of Direction 65.
When one looks at the totality of the Applicant’s criminal offending resulting in the lengthy custodial term imposed upon him, one has no option than to immediately consider his offending to be very serious. Expressed in cumulative terms, the Applicant was sentenced to a total of 41 years imprisonment for the 11 offences he committed. He should not complain about either the cumulative period of custodial time, nor about the length of the head sentence or non-parole period. He should, instead, be grateful for Judge Toner SC’s aggregation of the 11 offences into a head sentence of seven years with a non-parole period of three years and six months.
I am thus left with the impression that this Applicant’s offending can only be categorised as very serious. Accordingly, this subparagraph (d) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s offending can be readily categorised as ‘very serious’.
Subparagraph (e) of the paragraph 13.1.1(1) of the Direction concerns itself with the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant arrived in this country in 2008 and commenced offending in 2013 in Melbourne. As mentioned earlier, the reference to “Robbery” in his criminal history appears to have been adjourned “Without conviction”. He committed the identity fraud offences in Sydney between 17 December 2014 and 10 February 2015. On any reasonable view, a comparative analysis of his offending in Melbourne in 2013 and Sydney in 2014 and 2015, is clearly indicative of a significant escalation in the seriousness of the Applicant’s offending.
In terms of the frequency of his offending, one ought have regard to the remarks of Judge Toner SC, who observed that “These offences were committed between 17 December 2014 and 10 February 2015, which is about two months but clearly the activities of this offender and those who were in effect “employed” by him was intense.”
I am satisfied that the Applicant’s offending is demonstrative of a trend of increasing seriousness. I am further satisfied of the frequency or intensity evident in his conduct involving an initial conviction for breaching his bail followed by his dealing with identity information to commit indictable offences. Subparagraph (d) of paragraph 13.1.1(1) of the Direction thus strongly militates in favour of a finding that the Applicant’s offending conduct is very serious.
Subparagraph (f) of paragraph 13.1.1(1) of the Direction requires an assessment of the cumulative effect of the Applicant’s offending. There are three observations that can be made in relation to this subparagraph. First, one should look at the effect of the offending on the Applicant himself to understand how it caused him to, as it were, lose control of his moral compass and become not just a bit-player in this very serious offending, but instead, its protagonist. One need look no further than the agreed set of facts [my emphasis] pursuant to which the Applicant was sentenced and what those facts reveal about the Applicant’s role in the criminal enterprise:
·The offences he committed were committed in the context of an organised enterprise involving a number of people;
·The Applicant knew that the aim of the scheme was to utilise fake identification to perpetrate very serious fraud on banking institutions to facilitate the opening of bank accounts for the purposes of gaining a financial advantage;
·Judge Toner SC formed the view that the Applicant knew of the roles of the other participants in the fraudulent activity;
·The Applicant knew that a person or persons were involved in opening or attempting to open bank accounts;
·The Applicant committed each of the offences for financial gain of himself or others;
·The Applicant provided the fake identification information on each occasion with the specific intention of facilitating the commission of a fraud involving the obtaining of a benefit by deception.
Second, the cumulative and grave effect of the Applicant’s repeated offending on fundamental institutions in our community was, with respect, very aptly put by Judge Toner SC:
“…the nature of the enterprise … is such which fundamentally jeopardises an economic foundation of our community. The capacity of financial institutions in particular, or credit agencies, to be able to rely upon accepted means of proof of identity, is fundamental to the efficient operation of the system. Beyond that as well, the reliability of forms of identification also plays an important role in the day to day running of our community for all sorts of reasons where the proof of identity is required, whether it be for entry into secure structures, or upon reasonable demand from authorities for proof of identification.”[18]
[18] Exhibit 4, s501 G Documents, G02, page 56.
Third, the cumulative effect of the Applicant’s offending and its high level of seriousness was a factor squarely within the mind of Judge Toner SC, who observed that the gravity and seriousness of the Applicant’s offending attracted “a degree of accumulation” to reflect (1) the proposition that each offending episode was a separate offence and a separate activity, and (2) the length of time over which the criminal enterprise took place.
I am thus of the view that having regard to (1) the effect of the Applicant’s offending on a fundamental aspect of our community; (2) the organised nature of the criminal enterprise and the Applicant’s protagonistic role in it; and (3) Judge Toner SC’s observation that the offending attracted “a degree of accumulation”, this subparagraph (f) of paragraph 13.1.1(1) of the Direction strongly militates in favour of a finding that the Applicant’s offending is very serious.
Upon application of the above relevant factors in paragraph 13.1.1(1) of the Direction in both written and oral evidence before me, I am of the view that the nature and totality of the Applicant’s offending can only be viewed as very serious.
The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:
(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 reoffending …
The nature of the harm to individual(s) or the Australian community
The Respondent’s contention is that, were the Applicant to reoffend and commit further or other serious criminal offences of the type in which he had previously engaged in, there would be a significant and substantial financial loss that would be incurred by victims of that offending. The Respondent refers to the Applicant’s history of multiple counts of fraud offences and contends that the harm that would result in the event the Applicant committed further and like offences “is patently serious”.[19]
[19] Exhibit 3, Respondent’s SFIC, page 9 [35].
I agree with the Respondent’s contention. That agreement can be demonstrated by adopting a two-step approach to this particular assessment. First, it is necessary to look at the nature of the offences the Applicant has actually committed. Second, an understanding of the nature of those offences will inform a finding of the nature of any harm to individuals or the Australian community were the Applicant to re-offend in the future.
I have already found that the Applicant’s offending is very serious. Why is it so? It is very serious because the offending strikes at one of the vital pillars supporting the fabric of our community. The Applicant’s offending seeks to tamper with the operational capacity of our financial system, reliant, as it is, on vital systems and methodologies of identifying those who wish to engage that system. As observed by Judge Toner SC, the nature of the Applicant’s offending is to fundamentally jeopardise the operative capacity of our financial system to properly and safely discharge its function for the benefit of the Australian community.
The nature of the Applicant’s offending involved (1) an organised and systematic subversion of the opening of bank account(s), and (2) the deceptive facilitation of a movement of funds such as to intentionally deprive the financial institution of those funds. I have no doubt Judge Toner SC’s sentencing remarks would have been more moderate and his sentence significantly lighter had the Applicant been acting alone and had he been only detected for the commission of one or two such offences.
But this is not the nature of what the Applicant has done. The Applicant can be fairly stated to have been if not the protagonist, then certainly a protagonist, because it was the Applicant who provided the identification details to his co-offenders, which were used on the fake identification documents that were, in turn, used to open bank accounts for the purpose of gaining a financial advantage. It is clear that the Applicant knew the roles of all of the other participants in this fraudulent activity and cannot be said to have been on the fringes of it.
The nature and seriousness of the Applicant’s offending is also evident from Judge Toner SC’s comments about the length of the applicable head sentence for each of the Applicant’s offences. Judge Toner SC thought a maximum penalty for this offending of “only 10 years” was incongruous with the nature of the Applicant’s offending which his Honour thought to be “anomalous” relative to the maximum penalty available to him. In my respectful view, his Honour observed that the Applicant’s offending could quite conceivably have caused “…one to barrack for increased penalties…”, such was its gravity and seriousness.
His Honour further, in my respectful view, rightly apprehended the potential harm to our community from other unlawful and dangerous effects and evolutions that could arise from sophisticated and deceitfully intended identity fraud behaviour. It was not lost on his Honour that in this day and age of significant geopolitical instability, “…the reliability of instruments of identification…” was not only a critical element protecting the efficacy of our financial institutions, but such unlawful conduct also spoke to “…present concerns about terrorist activities…”, much of which is derived from and reliant upon the deliberate concealing or obfuscation of identity.
Having regard to the totality of the Applicant’s conduct, I am of the view that should he reoffend in a similar manner, the risk that he would pose to a member of the general public would be very significant. Based on the offending for which he has already been punished, that harm could result in (1) others suffering serious financial stricture, and (2) a financial institution being placed in a position of making good such financial loss that may be suffered by any of its customers. Viewed through an alternate prism, were the Applicant to continue his unlawful activity involving identity fraud, it is conceivable that his offending could devolve into yet more serious and potentially catastrophic consequences for the Australian community. I am therefore of the view that, were he to reoffend, the nature of potential future harm he would cause to members of the Australian community is very significant.
Risk of future offending
The not-insignificant term of actual imprisonment of three years and six months has been imposed on the Applicant. There has not yet been an opportunity to gauge whether the imposition of that actual term in custody has had any deterrent effect on any future propensity to offend. Although Judge Toner SC suspected that the Applicant “…represents good prospects of rehabilitation…” the Applicant’s rehabilitation is yet to be tested in the broader community.
The Applicant’s submissions reveal a concerning lack of insight into his offending. Even a cursory review of his written submissions indicate that he found himself on the wrong side of the jury’s verdict and otherwise now finds himself in his present predicament because (1) other people – such as his lawyers - have not done their job properly, or (2) earlier decision makers have not done their job properly and (3) we should not regard his offending as in any way serious because he has not committed the offences at all and will be vindicated when, at some undefined point, his convictions are quashed on appeal.
In his own submissions, the Applicant says he is of little or no risk to the Australian community because of the following factors:
·“None of the charges I got convicted of are against venerable [sic] members of society.
·None of the charges I got convicted of involve illegal recreational drugs.
·None of the charges I got convicted are of sexual in nature [sic].
·None of the charges I got convicted of are violent.
·I have a excellent [sic] work history during my imprisonment.
·I have not even one breach of prison discipline that is recorded against my name.
·I don’t have a drug; Alcohol problem.
·I have never been imprisonment before [sic].
·As the judge remarked on 22 may 2018, I have no criminal record prior to these 11 x counts convictions.”[20]
[20] Exhibit 1, Applicant’s SFIC, pages 3-4 [19].
Most, if not all of these factors are misconceived and irrelevant to any assessment of any future risk of reoffending. If the Applicant cannot grasp the gravity and seriousness of what he has done and appropriately apologise and/or express remorse for it, how can the Tribunal reasonably expect that if presented with a similar opportunity in future, he will have the necessary insight and protective impulse to desist from such activity?
The further point to note is that several of these factors are plainly incorrect and misleading. For reasons I have presently stated, I am of the view that his offending has had, or can have, the potential of affecting the interests of vulnerable members of our community. It is not correct for him to say that he has “…no criminal record prior to these 11 x counts convictions”. There is the further element of the apparently unresolved nature of the “Robbery” offence that was “without conviction, adjourned to 12/09/2014”.
In his written submissions, the Applicant purports to lay a measure of the blame for his convictions and subsequent sentencing on his legal representatives. According to him:
“…I found new evidence after the trail [sic], I trusted my lawyer and let them do there [sic] task by going through my brief of evidence and help me prove my innocence to the jury. But as I said in my representation ‘My lawyers did not represent me properly to prove my innocence to the jury’ because if they had examined my brief of evidence properly they would have discovered that evidence and submit it to the Jury, which I have now ‘New Evidence’ it would have proved my innocence to the jury…New evidence is the evidence which was available at trail [sic] or which could, with reasonable diligence, have been discovered…”[21]
[21] Ibid, page 4 [20].

This contention ought be entirely discounted on two grounds. First, I will not accept a lay Applicant’s assessment of the adequacy or otherwise of any legal representation provided to him/her by duly qualified and admitted legal practitioners in another proceeding. I will not do so on the basis that (1) there is no evidence before me about any adverse independent finding about the adequacy or otherwise of those practitioners’ representation of the Applicant and (2) those practitioners have not been called to give evidence in this hearing to explain the shortfall in their competence now alleged against them by this Applicant.
Second, the contention that the lawyers did not do their job properly goes absolutely nowhere when one has regard to the comments of the learned Judge Toner SC in his sentencing remarks. His Honour said:
“It seems however to me that there was an overwhelmingly powerful case against him from the beginning. One of the advantages that he has that he was very ably represented during the course of the trial. Perhaps he came closer than he should have for that reason and I note that he was found not guilty in relation to one matter which I think is probably because of the ability of his counsel rather than any other factor.”[22]
[my underlining]
[22] Exhibit 4, s501 G Documents, G02, page 59.
At the hearing, the Applicant sought to propound some kind of panacea deriving from an unproven assertion that his criminal convictions and sentence were somehow part of a live and current appeal to the appropriate appellate court in New South Wales. The stark reality for the Applicant is that the material reveals nothing of the sort. In cross-examination, he initially refused to answer any questions about his offending on the basis that to do so would be “highly prejudicial” to his prospects in any appeal. Having regard to his propounding of an “appeal” he was taken to a specific part of the G Documents that contained a “Notice of Intention to Appeal or Notice of Intention to Apply for Leave to Appeal”.[23]
[23] Ibid, G02, page 72.
The Applicant conceded that in strictly procedural terms, this document did not constitute “an appeal” and was in no way indicative of a reality that the Applicant’s conviction and sentence was the subject of any live or current appeal. He conceded that this document was filed on 23 May 2017 at the Registry of the New South Wales Supreme Court. He additionally conceded that a further document called a “Notice of Appeal” had to have been filed within six months of the first abovementioned document for there to be any semblance of a live or current appeal.
The Applicant also conceded that the actual “Notice of Appeal” document could only now be filed if it was preceded by a favourable preliminary order allowing it to be filed out of time. In terms of funding any proposed appeal, I note that the Applicant has sought assistance from both Legal Aid New South Wales[24] and the Pro Bono legal assistance scheme run by the Law Society of New South Wales.[25] Both of those approaches have not yielded any success for the funding of any appeal.
[24] Exhibit 1, Applicant’s SFIC, Exhibit 8.
[25] Ibid, Exhibit 10.
At the hearing, the Applicant submitted that he has now recently engaged lawyers to conduct an appeal on his behalf. Commendable though this initiative may be, it is not borne out by the written evidentiary material. It is correct to say that the Applicant has deposited (or caused to be deposited) the sum of $500 into a legal firm’s trust account.[26] However, I cannot accept the Applicant’s contention that those lawyers are actually conducting any live and current appeal on his behalf. Those lawyers, to the extent they have been instructed to do anything at all, have been instructed, on a clearly preliminary basis, to (1) receive and collate the necessary material, (2) examine that material and advise on the prospects of any appeal; (3) subject to that initial advice on prospects and subject to further funding, they will (4) commence work on the appeal. The terms of the relevant letter from those lawyers are instructive:
[26] Ibid, Exhibit 7.
“25 February 2019
To whom it may concern,
Dear Sir/Madam:
RE: Mohammed Ali – criminal
We refer to the above matter and advise we have received instructions to advise on prospects of an appeal against the convictions of Mr Mohammed ALI arising out of identity fraud charges dating back to 2014.
We are currently in possession of a file containing the relevant material and awaiting funding to commence work on the appeal.
Yours faithfully,
…”[27]
[my underlining]
[27] Ibid, Exhibit 10.
Perhaps the most telling comments about the Applicant’s lack of insight into his offending are to be found in the sentencing remarks of the learned Judge Toner SC:
“…He continues to maintain his innocence. I suppose it would be marginally to his benefit should he now fess up so to speak but there would be more than just a hint of hypocrisy about it as well…
He pleaded not guilty and still maintains his innocence.
It seems however to me that there was an overwhelmingly powerful case against him from the beginning.
In my opinion this was a case where he would have been better served, entering a plea at the earliest opportunity, but he did not take that option.”[28]
[28] Exhibit 4, s501 G Documents, G02, page 59.
There is a further aspect to take into account regarding any assessment of the likelihood of the Applicant engaging in further criminal or other serious conduct in future. It relates to whether there is any evidence of rehabilitative courses undertaken by the Applicant and, to my mind more critically, any independent and expert opinion about the causative factors behind his offending and, assuming they were identified or diagnosed, whether such factors were the subject of remedial treatment and management. To his credit, the Applicant has completed certain courses and has undertaken certain employment-based tasks during his term of criminal custody.[29] Although there is no documentary evidence to prove the contention, I am prepared to accept the Applicant at his word when he says “I finished Half of my degree in Bachelor of Accounting”[30] that he claims was part of a course of study he commenced with the University of Southern Queensland.
[29] Exhibit 1, Applicant’s SFIC, page 2, paragraphs [13] and [14].
[30] Ibid, [8].
Having regard to: (1) the nature and seriousness of the Applicant’s criminal offending; (2) the significant and lengthy custodial term imposed in May 2017; (3) the reality that the Applicant has engaged in offending that fundamentally jeopardises an economic foundation of our community; (4) his noticeable lack of remorse and acknowledgement of any wrongdoing; (5) the reality that his ongoing responsibilities as a father of two infant children did not preclude him from offending; and (6) the absence of any independent and expert report about the factors in his psychological constitution giving rise to a propensity to offend – I am of the view that it would be unsafe for this Tribunal to make any finding other than there being a strong likelihood of him engaging in further criminal or other serious conduct were he to be released back into the community.
In the event that he does reoffend, I find that the nature of the harm the Applicant will inflict on individuals or the Australian community – based on the nature of his offending to date – would also be very significant. As mentioned earlier, were the Applicant’s unlawful activities around identity fraud to be repeated in the realm of other offending, then it is conceivable that his offending could result in yet more serious and potentially catastrophic consequences for the Australian community.
Conclusion – Primary Consideration A
In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Respondent’s Statement of Facts, Issues and Contentions indicates that the Applicant has two minor Australian citizen children comprising a daughter and son, aged six and four years, respectively.[31] As I understood it, the uncontested state of the evidence about the parenting of the children is that the Applicant is separated from his former wife (who is the mother of the two children) and that in the event the Applicant were to be released back into the Australian community, the children will not reside with the Applicant, although he will seek to establish a pattern of visitation to spend meaningful time with the children.
[31] Exhibit 3, Respondent’s SFIC, page 10 [41].
In cross-examination, the Applicant provided details of his married and family life. He confirmed that his wife/the mother of the two children is, in fact, his “ex-wife”. He further confirmed that the marital relationship was over, but that “…no divorce as yet…” has been obtained. The Applicant also told the hearing that at the end of December 2016, he had received paperwork from the Child Support Agency regarding his proposed financial support of the children.
In cross-examination, the Applicant confirmed that he had not communicated with his wife since November 2015. He says that he has “…written her letters but she hasn’t responded”. He added that “…I don’t know where she lives, she’s not prohibited from traveling overseas and I don’t know if she’s got a passport.” The Applicant agreed that he had been in custody for about four years, but that he had not spoken with his ex-wife for just over three years, that is, since November 2015.
He was asked in cross-examination whether he had spoken to his children since November 2015, and responded along the same, if not identical, lines as he did in relation to his ex-wife. He said (1) he had not spoken to his children since November 2015 and (2) he did not know where the children were residing.
That said, I am not prepared to find that the Applicant is either disinterested in or dismissive of a role he can play in the lives of the children. I am prepared to find that, were he to be released back into the community, the Applicant would do what he could to re-establish a paternal connection with his infant children who are of a young enough age to experience, for a number of years to come, the reality of having a biological father in their lives.
In this regard, the Applicant confirmed that he had approached Legal Aid New South Wales in the latter part of 2018 to try and obtain Legal Aid funding in family law proceedings involving the obtaining of parenting-type orders in relation to his infant children. That evidence is to be accepted for a number of reasons. First, the Applicant seemed sincere in accepting that his absence from the lives of his children was not good for them and it was thus incumbent upon him to do what he could to re-establish his paternal role in their lives.
Second, there is a letter dated 18 September 2018 from Legal Aid New South Wales to the Applicant.[32] This is clearly a letter from Legal Aid relating to the children because in relation to the nature of the legal assistance sought, there is a reference in the letter’s subject line to “Legal Matter Spend Time With”. This can only be a reference to the Applicant’s Legal Aid application for funding to obtain orders so that he can “spend time with” his two infant children. The further reason the evidence is credible is that the Applicant knew why the request for legal assistance had been declined. He explained that because he was in custody, there was little or no utility in him obtaining orders to spend time with the children.
[32] Exhibit 1, Applicant’s SFIC, Exhibit 8 thereto.
The Applicant was also able to say that, on one occasion during his term in custody, he had received “drawings from the kids” but, aside from that, he has had no communication with the children for over three years.
As I understood his evidence, he accepted that his ex-wife was the primary carer of their infant children. He as frank enough to tell the hearing that, according to a “…rumour I heard from someone outside…” the Applicant’s ex-wife may have other children from another relationship and that such child or children could have been born while the Applicant has been in detention for about the last four years.
According to the Applicant, the relationship between his ex-wife’s family and him is not a good one. He described his wife as a “country girl” who did not like the city life and, as a consequence, the family (i.e. the Applicant/her/their children) moved to an area in the vicinity of Newcastle, New South Wales. The Applicant said that, to the best of his knowledge, his ex-wife and their two infant children may well still reside in that area.
He further confirmed that he had a supportive social network in Australia, which he established while the family resided in the Newcastle region. When asked about whether any of those social friends or contacts had provided supportive statements, the Applicant said “Not really, I just want my appeal to be finished. I haven’t spoken to my friends or close friends (except for one) because I didn’t want them to judge me because of the convictions.”
In terms of financially supporting his family were he to be released back into the Australian community, the Applicant made an initial and quite valid point that, if this occurred, he would be compelled to reside in New South Wales because of the terms of his parole conditions. On this basis, he said that provided his ex-wife and the children still resided in the same area, he would be able to re-establish himself in that area in terms of employment and income and would thus also be able to financially support both his ex-wife and the children.
He was asked about what sort of work he would do if released back into the community, and he said that he would find work “…in a warehouse…or as a general hand”. In terms of his aspirations regarding support of his two infant children, the Applicant acknowledged that he had “…overdue child support…” and that both he and his ex-wife have spoken about wanting to enrol the children at private schools.
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, those factors comprise:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or limited meaningful contact;
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account other ways they could maintain contact;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/children.
It is clear that while he speaks of re-connecting with the children, the Applicant has been out of their lives since at least November 2015. It is also clear that there is an absence of visitations by the children while he has been in either criminal custody or immigration detention, although this may, to an extent, be capable of explanation due to the geographical distance between the residential location of the ex-wife and the children and where the Applicant has been held in either criminal custody and/or immigration detention. Of greater concern is the unpleasant reality that there is little or no time spent by the Applicant and the children either on the telephone or other electronic platforms of communication, such as Facetime and/or Skype. The regrettable finding for present purposes is that since at least November 2015, the Applicant has been out of their lives.
In these circumstances, it is very difficult to allocate any meaningful weight to this subparagraph (a). On the tenuous bases of (1) the Applicant’s convincing contention that he wants to re-connect with the children were he to come back into the community and (2) his receipt of “drawings” or other depictions from the children, I will afford a slight amount of weight to this subparagraph (a) as a factor militating in favour of restoration of the Applicant’s visa rights being in the best interests of his infant children.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Apart from the evidence of the Applicant, there is no lay or expert and independent evidence before the Tribunal discussing (1) the role, if any, played by the Applicant in the lives of the children thus far and (2) any adverse impact on the minor children were the Applicant compelled to return to India.
The stark reality is that the Applicant has been out of the community in either criminal custody or immigration detention for upwards of four years. He has been entirely absent from the life of his four year old son. He has been virtually absent from the life of his six year old daughter. Ultimately, any role he will play in the lives of the children until they attain the age of 18 years is entirely up to him. There are 12 years until his six year old daughter turns 18. There are 14 years until his four year old son does so. Stated cumulatively, the Applicant has, in effect, 26 years of parenting as the biological father to both of these infant children.
Even in the absence of any convincing lay or expert evidence, it is reasonable to conclude that it is more likely than not that the Applicant will play at least some measure of a positive role in the lives of his two infant children until each of them attain the age of 18 years. I therefore positively apply this factor (b) to my consideration of whether restoration of the Applicant’s migration status is in the best interest of those two children.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the two infant children. My immediate conclusion is to find that the Applicant’s prior conduct has had no impact at all on his infant children due to their very young age at the time of his convictions. There is, as well, no direct evidence to suggest that the Applicant’s very serious offending in Australia has had any direct impact on his two infant children.

I am cognisant of the Applicant’s evidence about his intention to re-establish a paternal relationship with the children. This intention must surely be, at least in part, based on an apprehension in his mind that the children may at some point in their infancy (or beyond) be adversely affected by learning about or being taunted about the criminal convictions of their father. However, this is mere supposition and in the absence of any positive finding about the impact of the Applicant’s prior conduct on any of the two infant children, I am not able to allocate any weight to this factor (c) for the purposes of this consideration.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the two infant children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. As alluded to earlier, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his two infant children from India by SMS and/or social media platforms. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two infant children via Skype and other digital platforms. Even if one accepts the Applicant’s evidence about an apparently strong intention to obtain parenting orders, it is clear that were he to be returned to India, he would be able to maintain a level of contact with the children.
In these circumstances, this factor (d) is of minimal and only slight weight in assessing whether restoration of the Applicant’s migration status is in the best interests of the two infant children.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction also asks whether there are other persons who already fulfil a parental role in relation to the children. On the present state of the evidence, clearly, there are. On his own evidence, the two infant children are primarily parented by the Applicant’s ex-wife who, of course, is their mother. It is clear then, that any likely effect on the infant children arising from any separation from the Applicant, while a factor to be considered, is something that can be ameliorated due to the Applicant’s ability to maintain contact with the children in other ways. For the purposes of this factor (e) I am of the view that it is of minimal weight in assessing whether restoration of the Applicant’s migration status is in the best interest of the two infant children.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the infant children about their separation from the Applicant, having regard to their age and maturity. The children are aged six and four years, respectively. Apart from his own evidence, which demonstrated an intention to re-establish his paternal role in their lives, there are no known views of the two infant children such as to facilitate a positive application of this factor (f) in favour of the restoration of the Applicant’s visa status.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence of whether the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. In the absence of any positive finding of the impact of the Applicant’s conduct on any of the children, I am of the view that this factor (h) is of no weight and is not determinative of any finding about Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the Applicant’s evidence about wanting to take steps available to him to secure parenting orders for his six and four year old infant children;
(b)the relative absence of any convincing evidence of any parental or other role the Applicant has played in the lives of his two infant children since at least November 2015;
(c)the slight weight to be taken from factors (a), (b), (d), and (e) of paragraph 13.2(4) of the Direction;
(d)the Respondent’s concession that limited weight should be allocated to Primary Consideration B in favour of revocation as a non-recovation decision may cause some distress and emotional harm to the Applicant’s minor children;[33]
- I am of the view that the best interests of the Applicant’s two infant children in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is moderate only and does not outweigh that weight attributable to Primary Consideration A.
[33] Exhibit 3, Respondent’s SFIC, page 10 [43].
Primary Consideration C – Expectations of the Australian community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of very serious offending in this country should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in February 2008 as a 18 year old and had first offended in March 2013 for failing to answer bail in a matter relating to a “Robbery” just over five years since he had been in this country;
·His subsequent offending to which he was sentenced to 7 years imprisonment, with a non-parole period of three years and six months, caused him to be excluded from the Australian community for roughly half the time he has been here.
·Put another way, the cumulative custodial time imposed upon him for the 11 counts on which he was found guilty by the jury’s verdict in February 2017 amounted to a period of 41 years imprisonment. In other words, his offending was deemed to be so serious that the cumulative custodial time imposed for it was four times the amount of time he has been in this country.
·Judge Toner SC’s observations in his sentencing remarks to this effect:
oThe Applicant’s offending was committed in the context of an organised enterprise involving a number of people;
oThe Applicant knew that the ultimate purpose of the scheme was to utilise fake identifications to induce a banking institution to open bank accounts for the purpose of financial advantage of the Applicant and his co-offenders;
oThe offending was such as to fundamentally jeopardise an economic foundation of our community;
oThe Applicant’s offending was so serious as to cause Judge Toner SC to observe “I should say that I am not usually one to barrack for increased penalties, but this one seems a little anomalous”;
oThe activities of the Applicant in the criminal enterprise and those who were in effect “employed by him…was intense”;
oThe Applicant’s continued protestations of his innocence were unjustified because there was an overwhelmingly powerful case against him from the beginning;
oThe overall purpose of the scheme was clearly and criminally nefarious, involving, as it did, the production of fake identification information to facilitate the commission of a fraud involving the obtaining of a financial benefit from a financial institution by deception.
·The Applicant’s lack of insight into his offending and his less than credible evidence about pursuing rights of appeal about which three things can be said:
oThere is no live and current appeal before any Appeal Court because it is out of time;
oAny engagement of legal representation has been on the basis not of conducting any appeal, but of reviewing the material and ‘advising on prospects’ of success in any appeal;
oFurther, those legal representatives will also presumably advise on the prospects of success of a request for an extension of time to lodge a Notice of Appeal, which is now over 12 months out of time.
·The Applicant’s propounding of a contention that he found himself on the wrong side of the jury’s verdict and that he otherwise finds himself in his present predicament because (1) other people, such as his lawyers, have not done their job properly, or (2) earlier decision makers have not done their job properly, and/or (3) his offending should not be regarded as serious due to his forthcoming vindication on ‘appeal’.
·His offending in this country can only be described as very serious;
·There is no definitive, independent or expert evidence before the Tribunal of (1) any diagnosis of psychological or other factors predisposing the Applicant to offend, (2) that those factors have been identified and are now the subject of remedial therapy and management, (3) that the Applicant has demonstrated any level of insight into his offending so that (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block of this Tribunal, in 2003, said that one must look to the expectations of ‘…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.’[34]
[34] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[35] The learned Deputy President thought this paragraph leads a decision maker to:
‘102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.’
[my underlining]
[35] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]. This consideration was made in the context of Direction 65.
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[36]
‘In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.’
[my underlining]
[36] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
‘…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.’
[my underlining]
In Afu v Minister for Home Affairs,[37] Justice Bromwich said:
‘The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.’
[my underlining]
[37] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending;
(iii)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(iv)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed a series of very serious and potentially catastrophic identity fraud offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, re-define his life and to re-engage with his immediate and extended family and otherwise participate as a member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[38]
The evidence of Mr Anas Hashmi
[38] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant called evidence from Mr Anas Hashmi, who has also provided a written statement that appears in the evidence.[39] Mr Hashmi told the hearing that the Applicant was in his elder brother’s class at school in India. He said his family lived relatively close to the Applicant’s family in India. Mr Hashmi also told the hearing that he arrived in Australia on 31 March 2009 (about a month after the Applicant’s arrival) and that he “brought a parcel for the Applicant from a close friend of his in India.” Mr Hashmi also spoke of the Applicant’s family in India, telling the hearing “he’s got two sisters and his parents in India. He has a close relationship with his parents…but I don’t know about the present situation between the Applicant and his parents”.
[39] Exhibit 1, Applicant’s SFIC, Exhibit 2 thereto.
Mr Hashmi said that he was aware of the Applicant’s offending because the Applicant had told him about it. Mr Hashmi added that “he’s been wrongly convicted – he said he’s going to appeal.” According to Mr Hashmi’s evidence, he has limited knowledge of the factual background of the Applicant’s offending. He understood that the offending “…was on a fraud charge…I haven’t seen any formal court documents, but I have seen certain documents.” In terms of the appeal, Mr Hashmi said that it was he who provided the deposit of $500 into the trust account of solicitors apparently instructed to review the material and advise on the Applicant’s prospects of success in any such appeal.[40]
[40] See Exhibit 1, Applicant’s SFIC, Exhibit 7 thereto, Trust Account Receipt, Harb Lawyers, dated 21 November 2018; see also Exhibit 10 of the Applicant’s SFIC, comprising letter dated 25 February 2019 from Harb Lawyers to Whom it may concern, advising “We have received instructions to advise on prospects of an appeal against the convictions of Mr Mohammed ALI…We are currently in possession of a file containing the relevant material and awaiting funding to commence work on the appeal.”
Commendable though Mr Hashmi’s level of commitment to the Applicant’s legal plight may be, he was not able to explain the basis on which his $500 was deposited into the solicitors’ trust account. The following exchange occurred in Mr Hashmi’s cross-examination:
MR STAPLES: “What was the $500 for? – was it just so he [the Applicant] can get started on it [the appeal]? He [the Applicant] didn’t mention what part of the appeal the $500 was for?”
MR HASHMI: “No.”
I have misgivings about the veracity of Mr Hashmi’s evidence regarding the Applicant’s asserted appeal against his convictions. The actual trust account deposit was made on 21 November 2018. The relevant letter from the solicitors is dated 25 February 2019, in which the solicitors say not only that they have received instructions to advise on prospects of an appeal, they also, tellingly to my mind, say they are “…awaiting funding to commence work on the appeal.”
While it is not the role of this Tribunal to concern itself with the quantum of fees charged by a given firm of solicitors to conduct an appeal, Mr Hashmi’s payment of the subject $500 most likely goes no further than (1) causing the solicitors to open a file and (2) causing the solicitors to collate material to put together a file on which they can work. This is most likely why they said in their letter of 25 February 2019 that they are “awaiting funding [presumably further funding in addition to the $500 paid by Mr Hashmi] to commence work on the appeal.” It is thus not unreasonable to conclude that payment of the $500 has not even resulted in the commencement of any work by the solicitors on any appeal.
Mr Hashmi tepidly sought to augment this aspect of his evidence by saying that he understood the Applicant might well be able to attain additional funding from his family in India for the appeal. This evidence does not square with the Applicant’s evidence to the effect that (1) he is effectively estranged from his father and has not spoken to him for four years, and (2) he has only had very minimal contact with his mother via a five minute telephone call approximately once a month.

Mr Hashmi spoke about helping the Applicant find accommodation and employment were he to be released back into the Australian community. He said that he had very limited capacity to offer him accommodation assistance because he lived in Nyngan, which is about 600 kilometres from Sydney. Mr Hashmi said that he would not be able to find any work for the Applicant in Nyngan.
The Applicant came to Australia in 2008, aged 18 years. He commenced offending approximately five years after that, in 2013, when aged 22-23. His offending has seen him before lawful authority on at least two occasions. The two occasions involves the Applicant being dealt with by a court for offences exactly as would occur with any other member of the Australian community who may have similarly offended. His offending has been punished by his removal from the Australian community for something like half his total time in this country. As mentioned earlier, the cumulative custodial time imposed upon him is something like four times the amount of time in which he has found himself in this country. The Applicant was sentenced on the basis that he was a protagonist in a criminal enterprise involving deliberate and deceitful offending that was found to fundamentally jeopardise an economic foundation of our community.
Two further, and to my mind, critical points arise from the Applicant’s own evidence:
(i)The Applicant continues to proclaim his innocence and continues to propound a most likely fanciful scenario where the sum total of his convictions will, somehow, be quashed or otherwise set aside on appeal;
(ii)Any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis for virtually the last four to five years.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “Other Considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[41]
[41] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
As I recall the evidence and submissions, it was common ground that this Other Consideration (a) is not of relevance to this decision and that the evidence is not otherwise indicative of any requirement that assessment of this consideration is necessary for present circumstances.
(b) Strength, nature and duration of ties
The Respondent appropriately concedes that the Applicant’s ex-wife and two minor children all reside in Australia and that non-revocation of the cancellation of the Applicant’s visa “…will have a detrimental effect on these people.”[42] Be that as it may, as I have mentioned earlier, in relation to the best interests of minor children, there is no evidence to suggest the Applicant will not be able to make contact with his family via Skype, SMS, and/or other electronic/digital platforms.
[42] Exhibit 3, Respondent’s SFIC, page 12 [53].
The Applicant arrived in this country in February 2008, aged 18 years. Given that he commenced offending five years after his arrival, less weight should be afforded to this Other Consideration (b).[43] There is little or no significant evidence before the Tribunal to enhance the weight attributable to this Other Consideration (b) on the basis of the Applicant having made any positive contribution to the Australian community during his time in this country.[44]
[43] The Direction, paragraph 14.2(1)(a)(i).
[44] Ibid, paragraph 14.2(1)(a)(ii).
The Applicant contends that “I have strong community ties with Indian Community in Australia. I participate most Indian cultural gatherings in Australia.”[45] This contention seems largely uncorroborated. To the extent that the Applicant has potentially involved himself in his local ethnic community in the past, such involvement should not, in my view, displace the reality and weight attributable to (1) the Applicant’s commencement of offending in this country relatively soon after his arrival and (2) the very serious nature of that offending.
[45] Exhibit 4, s501 G Documents, G02, page 95.
The Respondent’s further contention, with which I agree, is that this Other Consideration (b), if found to weigh in favour of revocation, should be allocated limited weight and should not outweigh Primary Considerations A and C for the purposes of determining this application. Accordingly, I find that this Other Consideration (b) moderately weighs in favour of revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of relevance in determining this Application. It is important to understand what is meant by the phrase ‘Australian business interests’ in this paragraph 14.3 of the Direction. It refers to the significant compromise of the delivery of ‘a major project’ or significant compromise of a delivery of ‘an important service in Australia’.
On his own evidence, the Applicant proposes to find work in a warehouse facility or as a general hand. Thus, the Applicant’s removal from the community has not adversely impacted on any Australian business interests and nor is that likely to be the case were he to be returned to the Australian community. In the final analysis, little or no weight can be attached to this Other Consideration (c).
(d) Impact on victims
While there is reference to victims of the Applicant’s offending in the sentencing remarks of the learned Judge Toner SC, the Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on those victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
The Applicant contends that:
“I came to Australia at a very young age, I been [sic] in Australia for 11 years now. I have only completed half of my degree it would be really hard for me and impossible for me to re-established [sic] my self in India given that it would be impossible for me to find a job without a proper degree and given that there will be no support from my family.”[46]
[46] Exhibit 1, Applicant’s SFIC, page 6 [26].
The Applicant was asked about the possibility of re-connecting with his father, who had spent long periods away from the family in India and had established a sort of factory for the making of cooking oil in Dubai. The Applicant said that the relationship with his father was not a good one and that he had not spoken with his father for four years. The Applicant said that his mother in India had told him that the father’s cooking oil business in Dubai was not travelling very well and that it “…may have to be closed down.”
I also take into account the Applicant’s own evidence that he has a “huge family in India”. He mentioned at the hearing that two of his uncles and three of his aunts are still alive in India and that he has “…more than ten, probably more than twenty, cousins in India.” As against that, the Applicant said he has “no contact with any of them.” He said that he speaks with his mother about once per month, but that he has not spoken with his father for something like four years. He speaks of having siblings in India (sisters) and that none of them have yet married. He initially settled in Melbourne in 2008 and in 2012 moved to Sydney.
At the hearing, the Applicant further confirmed that during the period 2008-2012, he engaged in remunerative employment as a room attendant, that he worked at a McDonalds franchise and that he worked as a kitchen hand. He added that his parents financially supported him during this period and that both his mother and father would send him money.
The Respondent concedes that this consideration would weigh slightly in favour of the Applicant, but that any hardship the Applicant would suffer will likely diminish over time.[47] I am inclined to agree. Having regard to the factors appearing in paragraph 14.5(1) of the Direction, the following findings can be made:
(a)The Applicant’s age and health: the Applicant seems a physically fit, well and young man aged 29 years. While the Applicant contends that he would suffer from “trauma and psychological pressure not seeing my children grow up and become teenagers & Adults…” there is no other evidence before the Tribunal about how any mental or physical ailments will impede his capacity to re-establish himself in India;
(b)There would be no language or other cultural barriers that this Applicant would experience in terms of re-establishing himself in India. He arrived here as an 18 year old and is now bilingual. I would not expect the Applicant to have so severely forgotten his language skills and cultural connectivity with India such as to now render those matters as significant difficulties militating against his re-establishment in India.
(c)There seems no doubt that in terms of available social, medical and economic support, the Applicant would have access to the same services available to other Indian citizens. The ambit of paragraph 14.5(1) of the Direction stipulates that the extent of any impediments confronted by a non-citizen if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country. There is no evidence that the Applicant would not be able to access social, medical and/or economic support-type facilities in the same manner as they are available to all of the other citizens of India.
[47] Exhibit 3, Respondent’s SFIC, page 13 [61].
It seems fair to assume that the Applicant may face initial difficulty in re-establishing himself in India. However, the evidence does not demonstrate that such impediments would be insurmountable. While I accept that this Other Consideration (e) weights in favour of revocation, it does not outweigh Primary Considerations A and C, heavily favouring non-revocation.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: not relevant;
(b)Strength, nature and duration of ties: weighs moderately in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant;
(e)Extent of impediments if removed: weighs in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in 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.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

........................................................................
Associate
Dated: 13 March 2019

Date of hearing: 5 March 2019

Applicant: In Person

Advocate for the Respondent: Mr William Staples

Solicitors for the Respondent: Clayton Utz

[2019] AATA 417

13 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	5 March 2019
Applicant:	In Person
Advocate for the Respondent:	Mr William Staples
Solicitors for the Respondent:	Clayton Utz