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

[2022] AATA 2811

Aljorani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2811 (25 July 2022)

Division:GENERAL DIVISION

File Number:          2022/3731

Re:Mubarak Ahmed Abed Aljorani

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis
Member David Cosgrave

Date:25 July 2022  

Date of Written Reasons:      26 August 2022

Place:Brisbane

The decision under review is affirmed such that this Tribunal exercises the power conferred by section 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.

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

Senior Member Theodore Tavoularis  Member David Cosgrave

Catchwords

MIGRATION – Cancellation of Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) - where Applicant does not pass the character test – substantial criminal record – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
Jagroop and Minister for Immigration and Broder Protection (2016) 241 FCR461
M1/2021 v MHA [2022] HCA 17
Minister for Home Affairs v Omar (2019) 272 FCR 589
PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385

Secondary Materials

Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancelation of a visa under s501(CA)

Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis and Member David Cosgrave

26 August 2022

Introduction and Background

1. Mubarak Ahmed Abed Aljorani (“the Applicant”) is a 25-year-old male, born in Iraq on

   
   

   20^th November 1996. He arrived in Australia on 27 August 2013.[1] His Movement History[2] indicates that he has never departed Australia since his initial arrival.

   [1] R2, page 2, para [3].

   [2]     R1, G39, page 118.

2. He has a history of committing offences in Australia. In sentencing terms, it runs for an approximate five-year period from March 2016 to February 2021. It involves the commission of some 29 offences that were dealt with at nine separate sentencing episodes.[3] The length of his offending history represents a period in excess of half of the total time he has spent in this country.

   [3]     Ibid, pages 30-32.

3. In terms of significant and serious recent offending, the Applicant was, on 19 February 2018, convicted on five counts resulting in the imposition aggregate head custodial terms of imprisonment of seventeen months. Those head custodial sentences can be particularised as follows:

Court	Date	Offence	Sentence
Campbelltown Local Court	19/02/2018	Contravene Prohibition/Restriction in AVO[4] (domestic)	Imprisonment: 4 months
Campbelltown Local Court	19/02/2018	Contravene Prohibition/Restriction in AVO (domestic)	S9 Bond: 18 Months Supervision by NSW Probation Service
Campbelltown Local Court	19/02/2018	Possess prohibited drug	S10A conviction with no other penalty
Campbelltown Local Court	19/02/2018	Common assault (DV)-T2	Imprisonment: 9 months with non-parole period of 4 months
Campbelltown Local Court	19/02/2018	Common assault (DV)-T2	Imprisonment: 4 months

[4]     AVO: Apprehended Violence Order.

In terms of time actually served, the Applicant spent six months in criminal custody.[5] Despite the fact that one of the abovementioned respective custodial terms provided for a non-parole period, what matters for present purposes is the term of imprisonment to, “which a person has been sentenced, not the amount of time they actually served”.[6]

[5]      R2, page 2, para [4]; see also, Transcript (13 July 2022), page 30, lines 34-38.

[6]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, pages 415-416.

1. At all material times, the Applicant has been the holder of a Partner (Class BC) (Subclass 100) visa (“the visa”) which is the visa he held at the time of his initial arrival into this country. There is a letter in the material dated 12 March 2020.[7] The letter was prepared by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) and addressed to the Applicant at his then address in Western Australia. In this letter, it was explained to the Applicant that the Respondent has formed an intention to consider cancellation of the visa pursuant to s 501(2) of Migration Act 1958 (Cth) (“the Act”). This letter invited a response from the Applicant, who did duly respond with submissions and evidence.[8]

   [7]     R2, pages 53-57.

   [8]     Ibid, pages 60-117.

2. The Respondent duly considered the submissions and evidence provided by the Applicant and, on 11 March 2022, found:

   (1)the Applicant’s past unlawful conduct in Australia caused the Respondent to reasonably suspect that the Applicant did not pass the character test;[9]

   (2)the Applicant’s past unlawful conduct in Australia caused the Respondent to not be satisfied that the Applicant passed the character test;[10]

   (3)the Applicant’s past unlawful conduct in Australia caused the delegate to conclude that the Applicant represented a risk of harm to the Australian community which is unacceptable;[11]

   (4)the Applicant’s past unlawful conduct in Australia caused the delegate to exercise his/her discretion to cancel the Applicant’s visa pursuant to s 501(2) of the Act.[12]

   [9]     Migration Act 1958 (Cth), s 501(2)(a).

   [10] Ibid, s 501(2)(b).

   [11] R1, G3, page 28, para [107].

   [12] Ibid, page 29, para [113].

3. On 10 May 2022, the Applicant sought review of the Respondent’s abovementioned decision (i.e., made on 11 March 2022) in this Tribunal.[13] The hearing of this application proceeded before us on 13 and 14 July 2022. The hearing received oral evidence from:

   ·The Applicant;

   ·The Applicant’s adult sister, Ms Anfal Aljorani;

   ·The first of two of the Applicant’s minor twin sisters, Miss Hijran Aljorani;

   ·The second of the two of the Applicant’s minor twin sisters, Miss Ghufran Aljorani; and

   ·One of the Applicant’s two adult brothers, namely, Mr Ali Aljorani.

   [13]    R1, pages 3-8.

4. The hearing also received written evidence which was reduced to an Exhibit List which was agreed upon by the parties at the commencement of the hearing.[14] Attached to these Reasons and marked “Annexure A” is a true and correct copy of that agreed Exhibit List. On 25 July 2022, the Tribunal issued a short-form decision affirming the decision under review. It was duly published to the parties such that this Tribunal could meet its statutory obligation pursuant to section 500(6L)(c) of the Act.[15] Attached to these reasons and marked “Annexure B” is a true and correct copy of that short-form decision. We now publish our detailed written reasons for that short-form decision.

   [14]    See Transcript (13 July 2022), page 2, lines 13-38.

   [15]    Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].

   Issues

5. Section 501(2) of the Act provides that:

   “(2) The Minister may cancel a visa that has been granted to a person if:

   (a) the Minister reasonably suspects that the person does not pass the character test; and

   (b) the person does not satisfy the Minister that the person passes the character test.”

6. Section 499(2A) of the Act provides that in determining an application seeking to set aside the cancellation of a visa pursuant to s501(2) of the Act, the Tribunal must have regard to Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancelation of a visa under s501(CA) made pursuant to s499 of the Act (“the Direction”).

7. For present purposes, the Direction:

   ·at its Part 2 “Exercising the discretion”, contains guidance for decision-makers; and

   ·

   at its Part 1, contains certain Principles that must be considered by a decision-maker in approaching the task of making a decision under s 501

   
   

   (or s 501(CA)) of the Act;

   ·at its “ANNEX A – Application of the character test”, makes plain that if a non-citizen does not pass the character test, s 501(2) of the Act is enlivened such that the non-citizen’s visa can be cancelled.

8. The abovementioned Part 1 of the Direction, specifically at paragraph 5.2 (“Principles”), provides the framework within which decision-makers are required to approach the task of whether or not to exercise the discretionary power conferred by s 501(2) to cancel a visa that has been previously granted to a non-citizen. Summarised where appropriate, the principles are as follows:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

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

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

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

   (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

9. The abovementioned Part 2 of the Direction points out that, “Informed by the principles in Paragraph 5.2 [of the Direction], a decision-maker must take into account the considerations identified in sections 8 and 9 [of the Direction], where relevant to the decision.” Paragraphs 8 and 9 of the Direction (expressed as “sections 8 and 9” in the Direction itself) respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which we must be guided in making our decision. The Primary Considerations we must take into account are:

   “(1) protection of the Australian community from criminal or other serious conduct;

   (2) whether the conduct engaged in constituted family violence;

   (3) the best interests of minor children in Australia;

   (4) expectations of the Australian community.”[16]

   The Other Considerations which, where relevant, we must take into account, “include but are not limited to”:

   “a) international non-refoulement obligations;

   b) extent of impediments if removed;

   c) impact on victims;

   d) links to the Australian community, including:

   i) strength, nature and duration of ties to Australia;

   ii) impact on Australian business interests.”[17]

   [16] Direction No 90, para [8].

   [17] Ibid, para [9(1)].

10. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:

    (1)Information from independent and authoritative sources should be given appropriate weight;

    (2)Primary Considerations should “generally” be given greater weight than Other Considerations; and

    (3)One or more Primary Considerations may outweigh other Primary Considerations.

11. Section 501A of the Act provides as follows:

    “(1) This section applies if:

    …

    (b) the Administrative Appeals Tribunal;

    makes a decision…

    …

    (d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

    whether or not that person satisfies the…Tribunal that the person passes the character test and whether or not the…Tribunal reasonably suspects that the person does not pass the character test.”

12. There are therefore two issues presently before the Tribunal:

    (a)character test: whether there is a reasonable suspicion that the Applicant does not pass the character test, and whether the Applicant satisfies the Tribunal that he passes the character test and, if not;

    (b)exercise of discretion: whether the Tribunal should not exercise its discretion conferred by s 501(2) to cancel the Applicant’s visa.

    If the Applicant succeeds on either the “character test” ground or the “exercise of discretion” ground, the weight of authority indicates that the Tribunal must not exercise the power conferred by s 501(2) to cancel the visa previously granted to the Applicant. This would, in turn, involve the setting aside of the delegate’s decision made on 11 March 2022.

    We will now address each of the “character test” and “exercise of discretion” grounds in turn.

    Does the Applicant pass the Character Test?

13. As mentioned earlier, 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), 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”.

14. There seems to be little or no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[18] deriving from the imposition of a term of imprisonment upon him of twelve months or more.[19]

    [18]    Migration Act 1958 (Cth), s 501(6)(a).

    [19] Ibid, s 501(7)(c).

15. It is helpfully conceded in the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) that, “it is not in dispute that Mr Aljorani does not pass the “character test””.[20] This concession had its echo in oral submissions made by the Applicant’s representative at the hearing: “…The Applicant conceded that he failed the character test…”.[21]

    [20] A1, page 1, para [3]. Note: this concession is purported expressed in the mistaken context of a mandatory cancellation matter pursuant to s 501CA of the Act. This matter relates to a discretionary cancellation pursuant to s 502 of the Act. While the reference to mandatory cancellation in paragraph 3 of the Applicant’s SFIC is, of course, incorrect, we will presume the concession made on behalf of the Applicant was meant to apply to this instant application involving s 501(2) of the Act.

    [21]    Transcript (14 July 2022), page 90, lines 2-3.

16. The Applicant’s concession was, in our view, appropriately made. As noted earlier in these Reasons, the Applicant was, on 19 February 2018, sentenced to aggregate head custodial terms of 17 months. Consequently, we are satisfied that the Minister (by his delegate) reasonably suspected that the Applicant does not pass the character test and that the Minister was reasonably satisfied that the Applicant does not pass the character test.

17. Accordingly, the Applicant cannot rely on s 501(2)(a) or (b) of the Act to vitiate the Tribunal’s discretion (pursuant to s 501A(d) of the Act) not to exercise the power to cancel his visa.

18. The remaining and determinative issue for this Tribunal thus becomes whether it should not exercise its discretionary power conferred by s 501A(d) of the Act to not exercise its discretionary power to cancel the visa previously granted to the Applicant.

    IS THE TRIBUNAL’S DISCRETION PURSUANT TO S501A(d) ENGAGED?

19. In considering whether to exercise the discretion in s501A(d) of the Act, the Tribunal is bound in accordance with s499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[22] The Direction (at Part 2, paragraph 6) compels decision-makers to take into account the abovementioned Primary and Other considerations in determining whether the Tribunal’s discretionary power conferred by
    

    [22]    On 15 April 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. Direction 90 is a Ministerial direction made pursuant to s499 of the Act and must be applied by decision makers, including this Tribunal, on and from 15 April 2021.

    s 501A(d) of the Act is enlivened.

20. The considerations relevant in the context of a cancellation decision comprise the four Primary and four Other Considerations described above.[23] We note and emphasise the importance of the abovementioned Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[24]

    “…Direction 65 [now Direction 90] 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.”[25]

    [Tribunal insertion]

    [23]    See paragraph 11 of these Reasons.

    [24] [2018] FCA 594.

    [25] Ibid at [23].

21. We now turn to addressing the applicable Primary and Other Considerations to determine whether the Applicant’s discretion pursuant to s 501A(d) of the Act is enlivened.

    primary consideration 1 – protection of the australian community

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

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

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

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

3. We will consider each in turn.

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

4. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As noted above, the Applicant has an extensive offending history in Australia.

5. We will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.

   Paragraph 8.1.1(1)(a)(i)

6. This specific subparagraph looks for the commission of violent and/or sexual crimes. If an applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. The Applicant was convicted on 19 February 2018 on two charges of ‘common assault’. Both charges involved an element of violence and are relevant in our assessing the nature of the Applicant’s conduct as very serious.

7. The relevant police facts record the following in relation to the first domestically-violent offence:

   “About 6:20pm on Saturday the 25th of March 2017, the Accused [the Applicant] and the Victim were at Liverpool Railway, Liverpool. The Victim wanted to board a train to see some of her friends however the Accused did not want the Victim to leave him and insisted that she stayed with him.

   About 6:26 pm the same day the Victim boarded a train and the Accused ran after her and used physical force to grab her by the arm and drag her from the train. The Victim resisted but left the train with the Accused.

   The Victim then turned around and entered the train for a second time. The Accused again entered the train and again used physical force. The Accused grabbed the Victim with both of his hands lent backwards and pulled ~he victim from the train. The Accused and the Victim were facing each other and the Accused was pushing the Victim away from the train. The Victim slapped the Accused and the Accused grabbed the Victim on the forearms.

   The Victim and the Accused continued to face each other and the Accused continued to face each other and the Accused continued to push the Victim with his chest to prevent her from moving towards the train.

   The Victim continued to try to gain entry onto the trains which lasted for about 15 minutes with Accused continually getting in the way of the Victim.”[26]

   [Tribunal insertions]

   [26]    R3, R5, page 73.

8. The second offence involving family and/or domestic violence took place on 29 September 2017. The facts of that offending are recited below: 

   The accused Mubarak ALJORAIN[I] and the victim [redacted] were in an intimate relationship for about one year. The accused and victim however has recently separated due to a domestic incident…  the victim resides with her mother…

   On Saturday 25 March 2017, police applied for a Provisional Apprehended Domestic Violence Order as a result of a domestic incident between the victim and the accused. An Apprehended Domestic Violence Order was granted by the magistrate at Liverpool Local Court on Tuesday 28 March 2017…

   About 5:00pm on Friday 29 September 2017, the victim was at her residential address of [redacted] with her mother, [redacted]. The victim was waiting for the accused to attend the premises to pick up his property which had been left at the house before separating.

   During this time the accused attended the location. The victim has exited the house and met the accused out the front of the premises. The accused and victim were then involved in a verbal argument in relation to the victim going out the previous night. The accused has then demanded the victim go collect his property.

   The victim has then re-entered the premises and gathered the accused property. The victim has then handed the accused property back to the victim. The accused has then checked the property and found that his jumper was missing. The accused has then directed the victim to find his jumper.

   The victim has then re-entered the house and proceeded to search for the jumper however was unable to locate it. The accused become frustrated at the victim and picked up a rock from the front lawn. The accused has then threatened to smash the bedroom window.

   The victim has then confronted the accused outside the premises and was again engaged in a heated argument. The accused has then kicked the victim to her stomach, the force of the kick forcing her to move backwards. The accused has then ran from the location. The victim has contacted police… Police obtained a Domestic Violence Evidence In Chief Video Statement from the victim. Police sighted slight redness to the victims stomach and took a number of photos…”[27]

   [Tribunal redactions and insertion]

   [27]    Ibid, pages 81-82.

9. For completeness we note that the Applicant’s criminal history does not disclose a conviction for a sexual crime.

   Paragraph 8.1.1(1)(a)(ii)

10. This subparagraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, those offences are deemed to be views, “very seriously” by the Australian Government and the Australian community. Notably, this conduct can be taken into account regardless of whether or not a sentence was imposed for it.

11. The Applicant’s two convictions for common assault referenced above involved acts of violence against a woman with whom he was in an intimate domestic relationship (i.e., his former partner). Together, both of these offences attract the operation of sub-paragraph 8.1.1(1)(a)(ii) militating in favour of a finding that the nature of the Applicant’s conduct must be regarded as ‘very serious’. 

    Paragraph 8.1.1(1)(a)(iii)

12. This particular sub-paragraph looks for acts of family violence in an Applicant’s offending history and, if there has been such offending, provides that it is viewed, “very seriously” by the Australian Government and the Australian community.

13. As previously mentioned, the Applicant has numerous convictions for offences that fall within the scope of this sub-paragraph. A tabulation of these offences appears below:

Court	Date	Offence
Campbelltown Local Court	19 February 2018	Common assault (DV)-T2
Campbelltown Local Court	19 February 2018	Contravene prohibition/restriction in AVO (Domestic)
Campbelltown Local Court	19 February 2018	Common assault (DV)-T2
Campbelltown Local Court	19 February 2018	Contravene prohibition/restriction in AVO (Domestic)
Liverpool Local Court	30 August 2018	Contravene prohibition/restriction in AVO (Domestic)
Liverpool Local Court	30 August 2018	Contravene prohibition/restriction in AVO (Domestic)
Liverpool Local Court	30 August 2018	Contravene prohibition/restriction in AVO (Domestic)
Liverpool Local Court	30 August 2018	Attempt to breach prohibition/restriction in Domestic AVO
Liverpool Local Court	30 August 2018	Attempt to breach prohibition/restriction in Domestic AVO
Liverpool Local Court	30 August 2018	Attempt to breach prohibition/restriction in Domestic AVO

1. We are mindful that the terms of this specific sub-paragraph do, to an extent, dovetail into the auspices of Primary Consideration 2 (Family Violence) and a further discussion surrounding whether the victim of these offences (namely, the Applicant’s “on-again-off-again” partner) was a member of his family at the time of his offending will follow. However, for present purposes, we find (for the reasons which will follow within our discussion of Primary Consideration 2) that the victim of the Applicant’s offending was involved in a domestic relationship with him at the time he committed these offences. As such, it is conduct that squarely engages the language of this paragraph 8.1.1(1)(a)(iii) and thus militates very strongly in favour of a finding that the nature of this Applicant’s criminal offending in Australia has been very serious.     

   Paragraph 8.1.1(1)(b)(i)

2. There is no evidence in either the oral or written material to the effect that this Applicant has committed any offences in the realm of causing a person to enter into or being a party to a forced marriage. We are not able to find any formally recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular sub-paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.

   Paragraph 8.1.1(1)(b)(ii)

3. This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. There is nothing in the material before the Tribunal to show such offending by the Applicant. This sub-paragraph is consequently not relevant in assessing the nature and seriousness of the Applicant’s unlawful conduct.

   Paragraph 8.1.1(1)(b)(iii)

4. This sub-paragraph refers to serious conduct involving, “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. Neither party is propounding this component of the Direction in either its written or oral submissions. The transcript demonstrates neither party said anything about this particular sub-paragraph at the hearing. We therefore find that this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.

   Paragraph 8.1.1(1)(b)(iv)

5. This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. As such, this sub-paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.   

   Paragraph 8.1.1(1)(c)

6. In applying this particular sub-paragraph, we are precluded from taking into account sentences imposed on this Applicant for:

   (1)any violent offending he may have committed against women;[28]

   (2)acts of family violence;[29] and

   (3)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[30]

   [28]    Paragraph 8.1.1(1)(a)(ii).

   [29] Paragraph 8.1.1(1)(a)(iii).

   [30]    Paragraph 8.1.1(1)(b)(i).

7. We are therefore precluded from taking the specific sentences imposed on the Applicant on 19 February 2018 for two counts of common assault and for contravening (or attempting to contravene) a prohibition or restriction in an Apprehended Violence Order, which all relate to the woman with whom the Applicant was in a domestic relationship at that time. To the best of our understanding of the material, the Applicant has not been sentenced for conduct involving him causing a person to become involved in a forced marriage.

8. However, the Applicant has received numerous sentences for non-precluded offending which do attract the operation of this sub-paragraph 8.1.1(1)(c). The Applicant has received varied sentences within the sentencing hierarchy including: multiple bonds, multiple fines, multiple community service orders, disqualifications from driving and a good behaviour bond with mandatory drug diversion treatment.

9. The Tribunal summarises the Applicant’s non-precluded offences and subsequent sentences thus:

   ·2 August 2016: ‘Shoplifting value <=$2000-T2’: $440 fine.

   ·28 September 2016: four fines totalling $3,500 for various driving offences including driving an unregistered vehicle, exceeding the signed speed limit by more than 45km/h, driving the wrong way and driving whilst the Applicant’s licence was suspended. The Applicant also received a two-year disqualification from holding a driver’s licence.

   ·5 October 2016:  four fines totalling $1,100 and two twelve-month good behaviour bonds (including one requiring the Applicant to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and domestic abuse counselling and attending a traffic offender’s program) for driving offences including driving an unregistered vehicle and driving while the Applicant’s licence was suspended. The Applicant’s driver’s licence was also disqualified for a further twelve months.

   ·19 February 2018: two fines totalling $650 for a driving offence and for driving with a suspended licence (both call-up offences). A s 10A conviction with no other penalty (i.e., taken into account with other sentence) for possessing a prohibited drug.  

   ·13 March 2019: a $100 fine for possessing a prohibited drug.

   ·8 July 2020: a $400 fine and a three-month disqualification from driving due to driving without authority to do so.

   ·22 February 2021: no conviction recorded, $400 personal recognisance and a four-month good behaviour bond (with the added condition of attending a drug diversion program).  

10. The only conclusion which can be drawn after an examination of the Applicant’s non-precluded offending (and sentences subsequently imposed) is that he has received almost all of the broad range of the sentencing options open to a judicial sentencing officer to impose. The sentences imposed on him, including sentences of actual imprisonment must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[31]  We therefore are satisfied that the sentences imposed on the Applicant’s non-precluded unlawful conduct strongly militates that his offending history has been of a serious nature.

    [31]    See PNLB and Minister for Immigration and Border Protection [2018] AATA 162, para [20].

    Paragraph 8.1.1(1)(d)

11. This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness.

12. First, addressing the frequency of the Applicant’s offending, the Applicant has committed some 29 offences between 15 March 2016 and 1 January 2021, dealt with at nine separate sentencing episodes. We accordingly find that there is a clear and unavoidable frequency to the Applicant’s offending.

13. The second enquiry involves an assessment of whether the Applicant’s criminal history demonstrates a trend of increasing seriousness. The Applicant’s offending history starts with property and driving offences in March 2016, which escalates to assault, drug possession and various breaches of Apprehended Violence Orders in 2018 and 2019. The Applicant’s offending then resumes with an 8 July 2020 driving offence conviction and a drug possession offence on 1 January 2021. Whilst the Applicant’s criminal history is no doubt serious, especially in terms of his domestically violent crimes against his former partner, we are of the view (and we find) that it does not conclusively demonstrate a trend of increasing seriousness.

14. We are satisfied that this Applicant’s offending has been of a frequent nature but does not fully establish a trend of increasing seriousness. We conclude that both elements of sub-paragraph 8.1.1(1)(d) support a finding that the totality of the Applicant’s offending in this country has been, at minimum, of a serious nature.

    Paragraph 8.1.1(1)(e)

15. This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. We consider that the sequence of the Applicant’s offences demonstrates several cumulative effects.

16. First, it is reasonable to conclude that his offending is demonstrative of a failure to comply with, or otherwise meet, the requirements of lawful authority. This is evidenced by his repeated driving offences (sentenced on 15 March 2016, 28 September 2016,
    5 October 2016, 19 February 2018 and 8 July 2020) and his multiple breaches (and attempted breaches) of Apprehended Violence Orders (sentenced on 19 February 2018 and 30 August 2018).

17. Second, the sequence of the sentencing regime imposed on him is demonstrative of an Applicant who has failed to significantly experience any deterrent or dissuading effect from that regime. This view is supported by the repeated breaches of the same or similar offences (i.e., Apprehended Violence Orders, driving offences or possessing prohibited or dangerous drugs).

18. Third, the Applicant does not appear to have formed any longstanding or effective understanding of the necessary level of responsibility and lawful compliance in the ownership and operation of a motor vehicle on Australian carriageways. He has a multiplicity of convictions for both operating a motor vehicle while not lawfully licenced to do so, as well as operating an unregistered or uninsured motor vehicle or committing driving offences. It is neither safe nor appropriate to categorise the Applicant’s driving offences as belonging to some minor corner of his offending history. The Applicant’s history indicates a degree of indifference to the laws and regulations governing the operation of a motor vehicle.

19. Fourth, the Applicant’s offending must, on any reasonable analysis, be found to have consumed a disproportionate share of the community’s law enforcement and judicial sentencing apparatus.

20. The cumulative effects of the Applicant’s repeated offending described above support a finding that the totality of his offending in this country has been of a serious nature.

    Paragraph 8.1.1(1)(f)

21. This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. We have earlier outlined the Applicant’s movement history in and out of Australia. This sub-paragraph is therefore not relevant to our determination and is rendered neutral.

    Paragraph 8.1.1(1)(g)

22. The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. The material does not contain any reference to the Applicant’s receipt of any such formal written warning from the Respondent or its Department, about the consequences of any further offending by this Applicant resulting in adverse consequences in terms of his visa status to remain here. This sub-paragraph 8.1.1(1)(g) is not relevant to determination of the instant application.

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

23. We have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs to which we have referred, we conclude that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as at least serious and as more likely very serious.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

1. Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, we should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

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

   (a)“the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   (i)information and evidence on the risk of the non-citizen re-offending; and

   (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence…

   (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”

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

3. Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. It is difficult to identify from the Applicant’s SFIC or reply any reliable submission about the nature of the harm that would be occasioned by similar future offending by this Applicant. The configuration of the Applicant’s oral evidence was such as to purportedly re-cast the factual circumstances in which the offending was committed – particularly, the violent offending committed in a domestic context. We will have more to say about this purported re-casting of the evidence later in these Reasons when we assess the Applicant’s recidivist risk.

4. The Applicant has a multi-faceted offending history. It includes offences relating to the use, ownership and control of a motor vehicle, domestically violent conduct, at least two drug offences, and at least one offence in relation to property. There is little the Applicant can say to counter a finding that were he to re-commit his domestically violent conduct against another victim, there could very well be serious and significant physical and mental health consequences for that victim. It is not beyond the realm of possibility that further domestically violent offending could even result in a catastrophic outcome for a victim. The impact and nature of harm of domestically violent offending on victims has been previously recognised by this Tribunal. Former Deputy President Kendall[32] noted the following in XFKR and Minister for Immigration and Border Protection (Migration)[33] [2017] AATA 2385:

   “The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.”[34]

   [32]    Now His Honour Justice Christopher Kendall of the Federal Circuit and Family Court of Australia.

   [33] [2017] AATA 2385.

   [34] Ibid, para [45]. Note, this quote appears in R2, page 7, para [28].

5. As previously mentioned above, the Applicant has a significant history of offending involving the ownership, management and control of a motor vehicle. There are respective convictions for speeding – there is one instance of him exceeding the speed limit by 45km/h; driving an unregistered motor vehicle; driving an uninsured motor vehicle; driving a motor vehicle while his driver licence was suspended (multiple offences); and for driving that is more commonly known as, “hooning” which is described in the criminal history as, “Prolong, sustain etc. loss of traction” (three offences). There is also a conviction (resulting in a three-month disqualification from driving) for the offence of, “No authority to drive (never held)”.

6. This Tribunal (differently constituted) has previously outlined the nature of the harm that would befall other road users as a result of offending at the wheel of a car:

   “The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant…”[35]

   [35]    Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, at para [45].

7. This Applicant has compiled some fifteen motor vehicle-derived offences across a five-year period of offending. The number and nature of those offences demonstrates that he has failed to understand how, for example, operation of an unregistered vehicle by an unlicensed driver on an Australian public road increases other road users’ risk exposure. Motor vehicles are required to be registered because registration provides some measure of certainty about the vehicle’s roadworthiness and its level of necessary insurance to meet claims by third party road users for loss arising from personal injury. Similarly, operating a vehicle in an irresponsible or “hooning” manner directly exposes other users of Australian carriage ways to serious and significant harm, even to a catastrophic level.

8. Were the Applicant to again commit similar driving offences, there is little to cavil with the proposition (and finding) that it could result in serious and significant injury to other road-users, including, to a catastrophic level. We agree with the comments appearing in the Respondent’s SFIC: “…the Applicant’s offending should be viewed as very serious.”[36] In summary, were this Applicant to re-offend, we are of the view (and we find) that the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological and material harm to victims and/or the community at large, including, quite conceivably, harm to catastrophic level.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)

   [36] R2, page 5, para [19].

   (i)    Information and evidence on the risk of the Applicant reoffending

9. The Tribunal notes that there is a paucity of independent, clinical evidence relating to the Applicant’s risk of re-offending. Within the material there is a pre-sentence report, dated 15 February 2018, which was prepared by Corrective Services NSW for the purposes of sentencing the Applicant for the offences of, ‘contravene prohibition/restriction in AVO (Domestic)’ and, ‘Common assault (DV)-T2’. Contained within this report is the following information regarding the Applicant’s risk level and criminogenic needs:

   “According to the Level of Service Inventory- Revised actuarial risk/needs assessment tool, the offender is assessed as a Medium/Low risk of re-offending. The identified criminogenic needs are:

   • Education/employment

   • Financial

   • Family/marital

   • Accommodation

   • Leisure/recreation

   • Companions

   • Alcohol/drug problems

   • Emotional/personal

   • Attitude/orientation 

   …

   He reported that he had engaged in counselling sessions with his High School counsellor for over one year, which had helped him at the time. It would appear that Mr Aljorain[i][37] would benefit from a psychological assessment and subsequent counselling and/or medication to manage his anxiety, precipitated by historical trauma…”[38]

   [Tribunal emphasis]

   [37]    Note to reader: much of the material incorrectly refers to the Applicant as, “Mr Aljorain”.

   [38]    R3, R5, page 90.

10. In his Personal Circumstances Form (“PCF”), the Applicant provided the following explanation as to his belief about the recidivist risk he represents in Australia:

    “First of all I would like to make it clear that I am not in denial of the wrongdoing that I have committed in the past. I admit that I acted irresponsibly and caused harm whether intentionally or unintentionally to the members of the community, to my family and to myself.

    I came to Australia with my mother and other siblings in August 2013 to join our father who was granted a protection visa after the threats he had faced back in Iraq. I was 17 years of age. I can say now that at such young age the culture shock was so profound on me that I started to mix with the wrong people and delinquent young boys which I thought of as a kind of opposing the traditions I grew up with and the values that restricted my thoughts and behavior back in Iraq. I did not quite understand the real value of being free and the responsibility that comes with it. Every act that I have taken through those years was in its essence an act of rebellion. I did not come to my sense until years later when I started to realise the damage I have done to the society that gave me my freedom, to my family who had a great hope in me and to myself by wasting the opportunity of being a decent and productive member of the society. However, I can assure you that I am now a different person and that I am working on full time basis and trying my best to be kind and good to all the people around me.”[39]

    [Errors in original]

    [39]    R1, G13, page 70.

11. In his representations seeking to set aside the delegate’s decision made pursuant to s 501(3A) of the Act, the Applicant said:

    “I am older now and more wiser than I was at the time of committing those offence. As I have stated earlier, I am deeply remorseful about what I have done and truly repent the wrongdoing that I carried out with such selfishness and recklessness that i did not think of what I was doing to the people, to the country that extended the hand of help to me and my family, and to myself. I can assure you that I promise you as I promised my parents and people around me that I will be a law-obedient resident and never commit any offence no matter how small it is.”[40]

    [40]    Ibid, G15, page 80.

12. In his written statement of 10 February 2022, the Applicant said:

    “…I hereby would like to make it clear that I am not in denial of the wrongdoing that I have committed in the past. I admit that I acted irresponsibly and caused harm whether intentionally or unintentionally to the members of the community, to my family and to myself. I came to Australia with my mother and other siblings in August 2013 to join our father who was granted a protection visa after the threats he had faced back in Iraq. I was 17 years of age. I can say now that at such young age the culture shock was so profound on me that I started to mix with the wrong people and delinquent young boys. The act that I thought of as a kind of opposing the traditions I grew up with along with the values that restricted my thoughts and behaviour back in Iraq. I did not quite understand the real value of being free and the responsibility that comes with it. Every act that I have taken through those years was in its essence an act of rebellion. I did not come to my sense until years later when I started to realise the degree of the damage I have done to the society that gave me my freedom, to my family who had a great hope in me and to myself by wasting the opportunity of being a decent and productive member of the society. However I can assure you that I am now a different person and that I am working on full-time basis and trying my best to be kind and good to all the people around me.”[41]

    [Errors in original]

    [41]    Ibid, G16, page 82.

13. In his SFIC, the Applicant’s recidivist risk is addressed as follows:

    “9. it is clear that the applicant did not engage in a repetitive family violence, he accepted full responsibility for his actions, and that he fully understood the consequences of his  actions, here, I wish to refer to the fact the applicant’s criminal record doesn’t not show any family related violence after 30-8-2018 [G4-31], there is no risk that the applicant will reoffend in the future as suggested by the supporting statements, and the fact that his criminal history doesn’t show a pattern of aggressive behaviour, this fact should weigh in favour of Mr Aljorani’s case for revocation of his visa cancellation..”[42]

    [Errors in original]

    [42] A1, page 3, at [9].

14. In the Applicant’s evidence-in-chief, he was asked about his efforts to seek mental health and rehabilitation support. This is what he said:

    “MR ALKAFAJI: Mr Aljorani, you stated that you had a difficult –  and the statement says that you had a difficult upbringing, you have drug problems, at least, at some point in time, you have a violence with [Victim’s name redacted], did you seek any psychiatrist consultation, did you seek an expert in this field to deal with your problems?

    APPLICANT: Well I have tried, to be honest, I have tried – I used to speak to a counsellor in Cabramatta, she used to actually be my youth teacher, the one that looks after us when we’re learning English and that.  And then, after school, I used to go see her because I used to talk to her a lot, she’s a lovely lady, so yes, from now –  from now to then, like, I used to go see her, just have a chat with her and what not, like I released a lot of things to her (indistinct) what I’ve done and what not.  Other than that, like I’ve just been focusing on myself, trying to do it like on my own, you know what I mean.

    MR ALKAFAJI: Okay.  Part of the condition is, I understand, that because of the breach that you asked – you requested, actually, to do some community work, is that correct?

    APPLICANT: Yes.

    MR ALKAFAJI: Did you do all the community work?

    APPLICANT: Yes, I have.

    MR ALKAFAJI: Did you oblige with any court conditions in relation to the breach of the ADVO? Did you commit yourself – did you do any course of rehabilitation?

    APPLICANT: No, I didn’t do rehab.

    MR ALKAFAJI: Did they require you to - - -?

    APPLICANT: No.

    MR ALKAFAJI: Go through counselling or phone calls, or - - -?

    APPLICANT: Yes, I’ve done phone calls, yes, I’ve done like three courses on the phone.”[43]

    [Tribunal redaction]

    [43]    Transcript (13 July 2022), pages 17-18, lines 40-15.

15. In the Applicant’s sister, Miss Anfal Aljorani’s evidence-in-chief, she stated that the Applicant’s:

    “…behaviour, his personality it’s all changed, like from unmature guy who’s thinking all about hanging out with friends, all of the stuff, no responsibilities. So then he changed a lot to a mature guy who has a lot of responsibilities taking care of his family members, as I said he’s taking care of me, my other sisters, all my brothers, and my mum relies on him a lot financially, emotionally, all of that.”[44]

    [44]   Transcript (14 July 2022), page 62, lines 3-8.

16. However, during her cross-examination, she stated that she did not know that the Applicant had been convicted for offences of violence against a female.[45]

    [45]          Ibid, page 65, lines 9-10.

17. In the Applicant’s sister, Miss Hijran Aljorani’s evidence-in-chief, she observed the following about the Applicant’s behaviour:

    “My observation is the fact that in his teenage years he was very - you know those teenagers where you get very stressed out and you do things you don’t really think about, well, now my brother, I feel like he thinks about his decisions before he does anything. He really thinks about it and he knows the consequences, like, he really thinks about it and he tries his best not to do anything wrong, like, I can see it in him.”[46]

    [46]          Ibid, page 67, lines 41-47.

18. However, during her cross-examination, she stated that she did not know that the Applicant had committed criminal offences in Australia.[47]

    [47]   Ibid, page 68, lines 24-25

19. Subsequently, responding to questions from the Senior Member, Miss Hijran Aljorani stated that she was surprised at the information that the Applicant had been convicted of at least two offences of violence perpetrated against a woman.[48]

    [48]   Ibid, page 69, lines 32-37

20. In response to a further question from the Senior Member, namely whether she believed her brother would be able to, “hand[le] himself and not get violent” in the event of a future relationship breakdown Miss Hijran Aljorani stated that, “Yes, I’m 100 percent certain.”[49]

    [49]   Ibid, page 72, line 16.

21. Responding to another question from the Senior Member, another of the Applicant’s sisters, Miss Ghufran Aljorani, admitted that she was also not aware of the Applicant’s convictions for drug possession or for violence against a woman when giving her evidence as to the Applicant’s recidivist risk.[50]

    [50]   Ibid, page 76, lines 37-42

22. In the Applicant’s brother, Mr Ali Aljorani’s evidence-in-chief, he stated his belief that his brother had reformed.[51]

    [51]   Ibid, page 81, line 19.

23. However, during his cross-examination, he stated that he did not know what offences the Applicant had committed.[52]

    [52]    Ibid, lines 12-19.

24. In its SFIC, the Respondent contends that:

    “30    This is a case that the risk of harm is so serious that any risk of reoffending is unacceptable (paragraph 8.1.2(1) of Direction 90).

    31 Turning to the likelihood of the applicant engaging in further criminal or other serious conduct, the Minister contends that there remains an ongoing and unacceptable risk of the applicant reoffending for these reasons:

    31.1 There is no contemporary psychological opinion providing any professional risk assessment of the applicant’s likelihood of reoffending. However, the judicial officer sentencing the applicant on 19 February 2018 had regard to a pre-sentencing report which concluded that the applicant was a medium to low risk of reoffending (TB 88), although it should be noted that the applicant reoffended since that sentencing episode.  

    31.2 The applicant has a lengthy history of committing criminal offences in Australia.  It is concerning that over a five year period, the applicant has been convicted of 29 offences including a history of committing violence crimes. 

    31.3 The applicant has appeared before sentencing courts nine times in five years and sentences imposed by the courts including terms of imprisonment, have not deterred the applicant from reoffending.    

    31.4 It is also significant that the applicant committed an offence of possessing dangerous drugs on 1 January 2021 after he was notified on
    12 March 2020 of an intention to consider cancelling his visa on character grounds. The possible consequence of the applicant’s visa being cancelled also has not deterred him from reoffending.

    31.5 The applicant has not explained why he has been unable to comply with Australia’s traffic laws and this is particularly important since approximately half of the applicant’s crimes are driving related.

    31.6The applicant has not made any claim nor provided any evidence of having undertaken any rehabilitative courses to address his offending behaviour. The sentencing judge identified that the applicant had a difficult upbringing and there is no evidence that the applicant has engaged in any counselling to deal with that.

    31.7 The applicant’s recent claims of remorse should be tempered by the fact that the applicant initially denied to the police that he assaulted the victim in relation to the November 2017 assault.”[53]

    [53]    R1, G3, page 9.

1. During the Applicant’s cross-examination, the Respondent sought to impugn the Applicant’s evidence as to recidivist risk. That challenge to the Applicant’s evidence was directed as follows:

   (a)it was suggested to him that he had not done any organised courses specifically relating to illicit drug use or domestic violence;[54] and

   (b)that, despite the Applicant’s claim that he had the strength to stop using drugs, he was charged with being in possession of dangerous drugs on 1 January 2021,[55] after he was notified on 12 March 2020 of an intention to consider cancelling his visa.

   [54]    Transcript (13 July 2022), page 44, lines 33-37.

   [55]   R1, G13, page 70.

   (ii)    Evidence of rehabilitation achieved by the Applicant by the time of this decision

2. The evidence of rehabilitation achieved by the Applicant by the time of this decision can be summarised as follows:

   ·In his PCF, the Applicant responded to the question asking whether he has completed any courses or programs that will help him to avoid further offending by stating that:

   “I have not completed any program but I educated myself and learnt great deal from my mistakes. I have attached letters of reference from people who know me.”[56]

   [56]   Ibid,, G13, page 70.

   ·In the Applicant’s affidavit he also states that:

   “I am now, if I may say, is now (sic) a wiser person working hard to be good to all those around me and to be a productive member of the Australian society, working hard and helping the others whenever I can.”[57]

   [57]   Ibid, G38, page 117.

   ·In his evidence-in-chief, the Applicant describes undertaking three telephone counselling sessions or programs.[58]

   [58]  Transcript (13 July 2022), page 18, lines 8-15

   ·In cross-examination, the Applicant describes the counselling he has received in the following terms:

   “MR KYRANIS: You said in your evidence earlier today that you saw a counsellor, I think it was connected through your school?

   APPLICANT: Yes.

   MR KYRANIS: When was the last time you saw that counsellor?

   APPLICANT: When I got out of jail.

   MR KYRANIS: 2018 – mid-2018?

   APPLICANT: It was in 2019 before I moved to Perth, I seen her.

   MR KYRANIS: How many times did you see her?

   APPLICANT: I seen her like four times.

   MR KYRANIS: Would they have been half an hour or hourly counselling sessions, do you remember?

   APPLICANT: More than an hour, like I used to go and see her after school when she – she just basically like a fair worker, so like, she go help the refugee boys in school.  And I just had a close relationship with her, like you know what I mean, I would come and tell her all my secrets, like if I done something wrong, I just come and talk to her, like she was my peace, you know, like my safe place, like I would come and tell her everything, you know what I mean?  And she would just direct me to the right way, even before I moved, I just went and asked her, like, you reckon is moving a good idea?  And she said yes, it’s good to go (indistinct) and start fresh, like why not?  You know what I mean.

   MR KYRANIS: What is her surname?

   APPLICANT: Her name is Ms Kathy, I am not too sure about her surname, hey. 

   MR KYRANIS: Her first name is Kathy?

   APPLICANT: Yes.

   MR KYRANIS: She’s the – Kathy is the only counsellor that you’ve seen in Australia?

   APPLICANT: Well I did like a few phone calls about the drugs and what not, like courses. I am not too sure what they’re called but they will tell you like how dangerous is it, or like, is it dangerous to you, like the amount – like what – how do you – like what’s the solution if you are going – (indistinct) what do you do (indistinct) like all this type of things and how is it going to affect you in the long run?

   MR KYRANIS: The calls that you’ve said that you’ve had, were they ordered by a court in connection with your criminal matters that you were sentenced and part of that sentencing process was that you had to - - -?

   APPLICANT: Yes, yes, one of them was but three of them (indistinct), I’ve called and like asked questions, took advice, you know what I mean? Took directions in it. 

   MR KYRANIS: How long would those calls have lasted?

   APPLICANT: One of them, three and a half hours, (indistinct) an hour from (indistinct).  And another two is one hour and a half an two hours.

   MR KYRANIS: What were these calls about?

   APPLICANT: It’s about drugs, like you know, basically, I called for cannabis, like how is it effecting you on a daily basis and what does it exactly do to you, you know what I mean? Because if you go ask (indistinct) other people, they’re like – let’s be honest (indistinct) out there smoking weed daily, you know what I mean, if you ask (indistinct) doesn’t do anything to you but I just want to (indistinct) what it actually does to you, you know what I mean.”[59]

   ·Subsequently in cross-examination, there is the following exchange between
   the Respondent’s representative and the Applicant:

   “MR KYRANIS: You haven’t attended any – you have done any courses, for example, with organisations about drugs, domestic violence?

   APPLICANT:  No, not really, because I have the strength to stop it myself, like you know what I mean, I didn’t really need to go – I didn’t get to that stage where I need to go to rehab and then get locked in – so I stopped, I basically stopped myself, you know what I mean?” [60]

   [59]   Ibid, pages 43-44, lines 16-20.

   [60]    Ibid, page 44, lines 33-37.

   (iii)   Conclusions about risk

3. The sum of the evidence – which is almost entirely lay evidence – regarding the Applicant’s recidivist risk suggests that the Applicant’s approach to rehabilitation is more aspirational than formal or actual. There is little to no documentary evidence detailing how the Applicant has (if at all) learned, reflected on and analysed his offending behaviour to meaningfully demonstrate his rehabilitative prospects.

4. The Tribunal notes that the Applicant continued to contest the circumstances surrounding his family violence offending throughout the hearing, despite the Tribunal bringing the existence of CCTV footage recording of one such offence to his attention.[61] In our view, this demonstrates a lack of insight and remorse into his very serious domestically-violent offending. Although he expressed some remorse regarding the position his family violence had put him and his extended family in, we are of the view that these expressions do not seem to involve a retrospective examination of his wrongdoing. Rather, it seems more akin to something he feels compelled to say or express as a means of achieving a desired outcome in a hearing (or similar process) dealing with his visa status to remain here.

   [61]    Ibid, page 28, line 47.

5. The Tribunal also notes that the evidence of his siblings (insofar as they may function as a protective factor against the Applicant re-offending) must be qualified by their apparent ignorance (or lack of any sufficiently adequate knowledge) of the Applicant’s criminal record, especially the crimes of violence within the domestic context. Without having an awareness of the Applicant’s domestically-violent offending, it is the respectful view of this Tribunal that the Applicant’s family would only be able to play a very limited role in ameliorating the Applicant’s present recidivist risk. 

6. We also do not know the precise nature of the psychopathological factors predisposing the Applicant towards his offending conduct. The predispositive factors cited in the pre-sentence report (noting that this report is also somewhat historical as it dates from 2018) are not presently the subject of any program of remedial treatment, management, and control. This is despite the advice of Corrective Services NSW (the author of the pre-sentence report) that this Applicant, “…would benefit from a psychological assessment and subsequent counselling and/or medication to manage his anxiety, precipitated by historical trauma”.

7. Simply put, we do not know the prognostic outlook for this Applicant. To our minds, the highest the evidence goes in terms of rehabilitation is that the Applicant has taken early and tentative steps towards it, but that in all other respects, his rehabilitation and recovery remains, at best, a work in progress. We say, “at best” as the Applicant has made clear from his oral and written evidence that he does not really wish to engage in any formal rehabilitation and that he believes he is able to curb his recidivist risk without professional treatment or formal rehabilitation.

8. In light of the above, we are of the view that the only safe and logical finding is that his current recidivist risk is no different to what it was at the time of his most recent removal from the Australian community. In the absence of any clinical, independent expert evidence to the contrary, we find that the Applicant is of a medium/low risk of re-offending.

   Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?

9. Paragraph 8.1.2(2)(c) provides:

   “Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”

10. We address this specific sub-paragraph purely out of an abundance of caution and for the sake of completeness. This matter does not involve a, “refusal to grant a visa to a non-citizen”. It involves an issue of whether this Tribunal does or does not exercise the power conferred by s 501(2) to cancel a visa that has been granted to the Applicant. This specific paragraph is not relevant to determination of this application.

    Conclusion: Primary Consideration 1

11. With reference to the weight attributable to this Primary Consideration 1:

    (a)We have found that the nature and seriousness of the Applicant’s conduct to date has been very serious.

    (b)We have found that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be serious and would likely involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.

    (c)We have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct as medium/low by taking into account the following:

    (1)the available information and evidence before us informative of such risk; and

    (2)the dearth of any expert and independent clinical evidence addressing the levels of rehabilitation (if any) achieved by this Applicant.

12. Our analysis of the material before the Tribunal has led us to the finding that this Primary Consideration 1 carries a very heavy level of weight in favour of cancellation of the Applicant’s visa.

    primary consideration 2: family violence

13. Paragraph 8.2 of the Direction provides:

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.      the extent to which the person accepts responsibility for their family violence related conduct;

    ii.     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.    efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

14. Prior to any application of this paragraph 8.2 to the material, it is necessary to address the two questions it poses. We must determine:

    (1)who was a member of the Applicant’s family; and

    (2)whether any of the Applicant’s conduct against those family member(s) amounts to family violence. We will now address each question in turn.

    Who are members of the Applicant’s family?

15. As referred to earlier in our discussion of Primary Consideration 1, this Applicant has two convictions for offending in a domestic context. The Tribunal will not reventilate all the facts of this offending, other than to reiterate the relevant portions of the Police Facts Sheets relating to whether the victim in these offences was a member of the Applicant’s family. The first common assault charge, which occurred on 25 March 2017, records that, “the victim and the accused are in an intimate/Domestic relationship.” The second common assault charge, which occurred on the same day, records that:

    “The accused Mubarak ALJORAIN[I] and the victim [name redacted] were in an intimate relationship for about one year. The accused and victim however has (sic) recently separated due to a domestic incident… The victim was waiting for the accused to attend the premises to pick up his property which had been left at the house before separating.

    [Tribunal emphasis]

16. “As previously mentioned, both common assault charges came before the Campbelltown Local Court for sentencing on 19 February 2018. As a precursor to that sentencing hearing, the NSW Department of Corrective Services and Community Corrections prepared a Pre-sentence report, a copy of which appears in the material.[62] Relevantly, this Pre-sentence report notes the following:

    “Mr Aljorain[i] stated that he had been in a relationship with his partner (victim) for six years, having met in High School. He stated that they had lived together for the past four years, but had briefly separated in March 2017 as a consequence of their initial domestic dispute. The offender confirmed that they had subsequently resumed their relationship and was hopeful that they would continue their partnership going forward, despite the offences and Apprehended Domestic Violence Order (ADVO) that currently precludes contact between them.”[63]

    [Tribunal emphasis, addition, and redaction]

    [62]    Ibid, page 63, pages 88-91.

    [63]    Ibid, page 89.

17. At the sentencing hearing (held on 19 February 2018) for the two aforementioned common assault charges, the Applicant was legally represented.[64] Notably, there is no contention put on behalf of the Applicant during the sentencing hearing that the domestic relationship between the Applicant and the victim was at an end or that it was otherwise not current.

    Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 (“Deng”)

    [64]    See R1, G6, page 35, line 13 for the identity of the Applicant’s legal representative at this sentencing hearing.

18. We are mindful of the very recent Full Federal Court authority in Deng.. In that decision, the court quashed an earlier decision of this Tribunal and ordered that it be remitted for re-hearing. the Full Court explained the nub of the basis on which the Tribunal’s decision was quashed thus:

    “The difficulty arises because of the way the Tribunal dealt with the violence committed by the appellant against Ms S. At [104], the Tribunal stated that Ms S “was the [appellant’s] intimate partner, meaning his violence against her was an act of family violence”. As has been observed, the Tribunal appears to have proceeded on the basis that, because Ms S was the appellant’s intimate partner, she was therefore a member of his family for the purposes of the definition of “family violence” in paragraph 4(1) of Direction 90, with the consequence that the appellant’s violence against her was “family violence” for the purposes of the Direction. The difficulty is that the Tribunal did not expressly refer to the definition of “family violence” in paragraph 4(1) of the Direction and did not expressly consider whether or not Ms S was a “member of [the appellant’s] family” for the purposes of that definition. While Ms S may have been a member of the appellant’s family for the purposes of the definition of “family violence”, this was a contestable issue that needed to be considered. In the absence of any express consideration of this question in the Tribunal’s reasons, we are not satisfied that the Tribunal considered this question. In the circumstances, this constituted a failure to carry out the statutory task (noting that this is not precisely the way ground 2 is put). Further, the statement in [104] suggests that the Tribunal erroneously proceeded on the basis that, because Ms S was the appellant’s intimate partner, it followed that she was a member of his family for the purposes of the definition. This was an error of law. As the primary judge correctly held (at [157]), while the existence of an intimate relationship is relevant, it is not determinative of whether a person is a member of the person’s family for the purposes of the definition of “family violence”.[65]

    [65]    Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115, para [126].

19. Thus, the Full Court was of the view that the Tribunal had not made an express reference to the definition of “family violence” in paragraph 4 of the Direction and did not expressly consider whether or not the victim of the domestically violent conduct was a member of the person’s family for the purpose of paragraph 4 of the Direction. In essence, the Full Court found that the Tribunal did not come to grips with the definition of “family violence” in paragraph 4 of the Direction and erroneously proceeded on the assumption that the victim was a member of the person’s family because the victim and the person/Applicant in that case were in an intimate relationship.

20. As noted earlier, the Full Court, at paragraph [124] of its decision noted the following:

    “…We agree with the primary judge (at [156]-[157]) that the expression should not be narrowly construed and that it could extend (depending on the circumstances) to a person who is in an intimate relationship with the person.”

    Analysis of the evidence

21. In this case, the Applicant’s evidence was that he and the victim of his domestically violent offending were in an, “on again, off again” type of relationship. He confirmed they had a sexual relationship and pooled their financial resources such that they paid for things for each other. We are especially mindful of the abovementioned pre-sentence report, dated15 February 2018, which is very contemporaneous with the date of the relevant sentencing (namely, on 19 February 2018). This report makes it clear that the Applicant told this report writer that he and the victim:

    “…had lived together for the past four years, but had briefly separated in March 2017 as a consequence of their initial domestic dispute. [The Applicant] confirmed they had subsequently resumed their relationship and was hopeful that they would continue their partnership going forward, despite the offences [the two common assault charges on which the Applicant was sentenced on 19 February 2018] and Apprehended Domestic Violence Order (ADVO) that currently precludes contact between them.”[66]

    [66]    R3, R5, page 89.

1. We are mindful of the authority of PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs,[131] which allows a decision maker to have regard to a statement from a victim speaking favourably about the Applicant remaining in Australia. However, in the absence of such a statement or similar document in the material, no such discussion is warranted.

   [131] [2021] FCA 1235.

2. Having regard to the respective positions of the parties expressed during closing submissions, we are of the view that this Other Consideration (c) is of no application and no weight is assigned to it.

   Other Consideration (d): Links to the Australian Community

3. Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.

4. There are two factors which we must assess in determining the level of weight allocable to Other Consideration (d). They comprise:

   (1) the strength, nature, and duration of ties to Australia; and

   (2) the impact on Australian business interests if he cannot remain here. We will consider each in turn.

   (1)     Strength, nature and duration of ties

5. With reference to the first part of this Other Consideration, we will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. We will address each component in turn.

   1. Impact of non-revocation on the Applicant’s immediate family

6. In his PCF, the Applicant recorded the following other close family members he has in Australia:[132]

   [132] See generally R1, G13. 

Family Name	Given Name	Date of Birth	Relationship to Applicant
Alkbeeh	Zainab Zaben Thwainin	1 January 1975	Mother
Aljorani	Ahmed Abed	24 January 1973	Father
Aljorani	Faisal Abd Abdullah	16 April 1986	Uncle
Aljorani	Mohammed	26 November 1995	Brother
Aljorani	Anfal Ahmed	13 January 1999	Sister
Aljorani	Ali Ahmed	5 December 2000	Brother
Aljorani	Hasan Ahmed	8 February 2003	Brother
Aljorani	Hijran Ahmed Abed	11 September 2006	Sister
Aljorani	Ghufran Ahmed Abed	11 September 2006	Sister
Aljorani	Fatima	-	Sister

1. The Applicant’s mother, Zainab, and father, Ahmed, as well as his sisters – Anfal, Hijran and Ghufran – and his brothers - Ali, Hasan, and Mohammed – provided written statutory declarations that address the Applicant’s family ties.

2. The Applicant’s sisters – Anfal, Hijran and Ghufran– and his brother, Ali, gave oral evidence that spoke to the Applicant’s family ties. There is no doubting the proximity, currency, and importance of the Applicant’s relationship with his immediate family. It can be accepted as proximate because the family, apart from the Applicant’s older brother, Mohammed, live together in one household.

3. Having regard to the state of the evidence and circumstances surrounding the Applicant’s parents, we find that the strength, nature, and duration of his ties to those particular immediate family members in Australia carries a heavy level of weight in favour of revocation. We make this finding on the presumption that each of the Applicant’s parents are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   2. Strength, nature, and duration of “other ties” – length of residence

4. There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia with his family on 27 August 2013 and has not subsequently left Australia.

5. We now refer to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those compels us to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia, with his family, in 2013. His first conviction in an Australian court occurred on 15 March 2016 – some 31 months after his arrival. He arrived here as a sixteen-year-old and began his offending as a nineteen-year-old. A period of three years post-arrival should not be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.

6. The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. We have found the Applicant has been, and is currently, employed in Australia. He will have paid taxation on the income he derived and would thus have made a financial contribution towards this country from which the Australian community is sustained. The material also contains reference to the Applicant’s voluntary contributions to the community. In his PCF, he says:

   “I have also attached some character references from not only my children’s school, where I have been an active member volunteering for there (sic) school canteen but whenever else possible. I also have references from my elderly neighbours where, in the past, I helped out any way possible.”[133]

   [133] R1, G13, page 72.

7. The second tempering sub-element can thus be applied in favour of this Applicant due to his contributions to the Australian community via his engagement in remunerative employment and his volunteering efforts at Marsden High School,[134] and more generally. Therefore, while the first tempering sub-element can be found to be neutral, the second one can be applied in his favour to attract more weight to this Other Consideration (d) for the purposes of revoking the decision to mandatorily cancel his visa.

   [134] Transcript (13 July 2022), page 53, line 32.

   3. Strength, nature, and duration of “other ties” – family and other social links

8. In his PCF, the Applicant recorded the following other close family members he has in Australia:

Family Name	Given name	Date of Birth	Relationship to Applicant
Alkbeeh	Zainab Zaben Thwainin	1 January 1975	Mother
Aljorani	Ahmed Abed	24 January 1973	Father
Aljorani	Faisal Abd Abdullah	16 April 1986	Uncle
Aljorani	Mohammed	26 November 1995	Brother
Aljorani	Anfal Ahmed	13 January 1999	Sister
Aljorani	Ali Ahmed	5 December 2000	Brother
Aljorani	Hasan Ahmed	8 February 2003	Brother
Aljorani	Hijran Ahmed Abed	11 September 2006	Sister
Aljorani	Ghufran Ahmed Abed	11 September 2006	Sister
Aljorani	Fatima	-	Sister

1. The Applicant’s mother, Zainab, and father, Ahmed, as well as his sisters – Anfal, Hijran and Ghufran – and his brothers - Ali, Hasan, and Mohammed – provided written statutory declarations that address the Applicant’s family ties.

2. All state that the Applicant assists with the health care of his sister, Anfal, and that of his brothers Ali and Hasan.

3. All state that the Applicant provides financial assistance to the family and that he also employs and trains his brothers Ali and Hasan.

4. The Applicant’s sisters – Anfal, Hijran and Ghufran – and his brother, Ali, gave oral evidence that address the Applicant’s family ties.

5. Miss Anfal Aljorani, in cross-examination, gave the following answers:

   “MR KYRANIS: You said he assists by taking you to or driving you to university sometimes?

   ANFAL ALJORANI: Yes.

   MR KYRANIS: Medical appointments, all that?

   ANFAL ALJORANI: Yes.

   MR KYRANIS: Does your dad also assist with that at the moment?

   ANFAL ALJORANI: Yes, he’s does because he’s full-time now and sometimes if he can’t, he’ll bring my other brothers and sisters. But he doesn’t like my brothers to (indistinct), like typical with others things. He don’t.

   MR KYRANIS: What about any of your other siblings. You’ve got another two brothers?

   ANFAL ALJORANI: They do have disability. They do have a hearing problem. They’re not really helping me that much. We help them all.

   MR KYRANIS: It could assist you though, couldn’t it?

   ANFAL ALJORANI: Not really much because they need help. They need our help, not really. Like, we can’t really rely that much on them because they do have either bone fracture, and as well as the (indistinct). So, sometimes he can’t really drive. Well I do (indistinct) I was driving. They can’t really do much. Drop me off. Pick me up.”[135]

   [135] Transcript (14 July 2022), pages 63, lines 26-44.

6. Miss Hijran Aljorani, in cross-examination, gave the following answers:

   “MR KYRANIS: Who takes you to school?

   HIJRAN ALJORANI: Mostly it’s Mubarak that takes me to school.

   MR KYRANIS: Does your dad?

   HIJRAN ALJORANI: Sometimes he does when he’s not busy.

   MR KYRANIS: What about your other two older brothers?

   HIJRAN ALJORANI: Well, my two older brothers, one of them - are you talking about Hassan and Ali?

   MR KYRANIS: Hassan, yes?

   HIJRAN ALJORANI: Hassan, he works. So, he’s usually out the house by then. And Ali also works. He doesn’t exactly work. My brother is teaching him, Mubarak. He teaches both of them to become barbers, yes. So, that’s why.”[136]

   [136] Ibid, page 68, lines 36-45; page 69, lines 1-3.

7. Miss Ghufran Aljorani, in cross-examination, gave the following answers:

   “MR KYRANIS: So your brother assists with some financial - some things in relation to attending trips or any expenses that need to be paid about your public schooling, there’s no private school fees that he’s paying for?

   GHUFRAN ALJORANI: Yes, but our public school does have school fees for our bring your own devices and the internet that we use and the resources that we do use in school. So that can sum up to quite a bit over time.

   MR KYRANIS: Could you ask your parents to pay for things like that?

   GHUFRAN ALJORANI: My mother doesn’t work, she’s on Centrelink so I asked my brother for the financial aid.

   MR KYRANIS: What about your father?

   GHUFRAN ALJORANI: He also doesn’t work, he’s also on Centrelink. My mother suffers from lower back pain which causes her - like it can get so severe where she can’t get out of bed, so I go to my brother to help out.

   MR KYRANIS: Would you ask your dad for money, for pocket money or something like that if you needed?

   GHUFRAN ALJORANI: I usually go to my brother but if I really need it I may ask my dad, but I go to my brother almost 100 per cent of the time.

   MR KYRANIS: What about your other two older brothers?

   GHUFRAN ALJORANI: I don’t really go to them because they - they don’t get much either because my brothers both suffer from disabilities (Indistinct) and hearing loss which causes them not to get like jobs because of them. So I go to my brother because he’s the one with a stable job.”[137]

   [137] Ibid, pages 74, lines 28-46; page 75, lines 1-2.

8. The combined effect of the evidence from the Applicant’s immediate family leads us to a finding that they would be impacted by an outcome resulting in the Applicant’s removal to Iraq. It can be accepted that – based on the evidence of the Applicant’s immediate family – the Applicant does have, “family and social links” with Australian citizens.[138] This third component of Other Consideration (d) facilitates the allocation of weight in the Applicant’s favour towards the revocation of this decision to mandatorily cancel his visa.

   [138] I make this finding on the presumption that each of Ms Devi and Ms Narayan are either Australian citizens, Australian permanent residents, or people who have a right to remain in Australian indefinitely, noting the pending nature of Ms Devi’s visa status referred to earlier in these reasons: see Transcript (14 July 2022), page 80, lines 1-14.

   (2)     Impact on Australian business interests

9. We are cognisant that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. We find that this component of Other Consideration (d) is not relevant.

   Weight allocable to Other Consideration (d): links to the Australian community

10. Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), we are of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a moderate, but not determinative level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate, but not determinative level of weight in favour of a finding that his visa status to remain here should be restored to him.

    Further Other Consideration (e): Prolonged or Indefinite Detention

11. We are mindful that this Tribunal should account for any legal consequences of this decision relating to the Applicant’s visa. Section 189 of the Act provides that a decision affirming the decision under review will result in the Applicant’s continued detention until either the determination of his prospective protection visa claims and / or his removal. Regard must be had to that provision in circumstances where s 189 of the Act requires an unlawful citizen to be detained, and adverse outcome in this application may very well extend the Applicant’s time in an immigration detention facility.

12. The most likely scenario is that the Applicant will be kept in immigration detention until determination of his protection visa application, or until another event ends that detention. Paragraph 9.1(3) of the Direction provides three possible alternatives to either refoulement or ongoing detention. They are:

    (a)removal to another country; or

    (b)the Minister exercising their personal discretion under s 195A to grant the Applicant, “another visa”; or

    (c)the Minister exercising their personal discretion under s 197AB to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.

13. While it can be found that this prospect of prolonged or indefinite detention may weigh in favour setting aside the decision under review, the weight attributed to this factor should, in our view, be limited in the circumstances.

14. Further reference should also be made to paragraph 9.1(3) of the Direction which relevantly provides that because the Applicant is able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined. In the event a “protection finding” were made, the Applicant would not be liable for removal unless and until any one of the following occur:

    (a)the decision grounding the protection finding is quashed or set aside; or

    (b)pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or

    (c)the Applicant asks the Minister, in writing, to be removed.

15. In the circumstances, we are of the view, and we find, that the element of prolonged or indefinite detention is of moderate, but not determinative, weight in favour of restoring the Applicant’s visa status to remain here.

    Findings: Other Considerations

16. We summarise the respective weights we have allocated to each of the Other Considerations (nominated in the Direction[139]) relevant to the present matter:

    (a)International non-refoulement obligations: is of a moderate, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain in Australia;

    (b)Extent of impediments if removed: is of a moderate, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain in Australia;

    (c)Impact on victims: is of no weight;

    (d)Links to the Australian community: is of a moderate, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain in Australia; and

    (e)Prolonged or indefinite detention: is of a moderate, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain in Australia.

    CONCLUSION

    [139] Plus, Other Consideration (e) which we have added as part of our consideration.

    Is there another reason to revoke the cancellation of the Applicant’s visa?

17. Section 501A of the Act provides that this Tribunal can make a decision not to exercise the power to cancel the Applicant’s visa, whether or not: (1) he satisfies this Tribunal that he passes the character test, or (2) this Tribunal reasonably suspects that he does not pass the character test. As we have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before us, we are of the view that this Tribunal should, pursuant to s 501A(d) of the Act, not exercise the power conferred by s 501(2) to cancel the Applicant’s visa.

18. In reaching this conclusion to not exercise the subject power, we have had regard to the considerations referred to in the Direction. With regard to the weight we have allocated to each of these Primary and Other Considerations, we find as follows:

    (a)Primary Consideration 1: weighs very heavily in favour of exercising the power to cancel the subject visa;

    (b)Primary Consideration 2: weighs heavily in favour of exercising the power to cancel the subject visa;

    (c)Primary Consideration 3: is of a moderate, but not determinative level of weight in favour of not exercising the power to cancel the subject visa; and

    (d)Primary Consideration 4: weighs very heavily in favour of exercising the power to cancel the subject visa.

    (e)We have outlined the weight attributable to each of the Other Considerations.[140] We are of the view (and we find) that the combined weights we have allocated to Primary Consideration 1, 2 and 4, respectively, are sufficient to outweigh the combined weights we have allocated to Primary Consideration 3 and Other Considerations (a), (b) and (d), respectively;[141] and

    (f)A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal exercising the power to cancel the Applicant’s visa.

    [140] Including the additional Other Consideration (e) which we have identified as, “prolonged or indefinite detention”.

    [141] Including the weight we have allocated to Other Consideration (e): prolonged or indefinite detention.

19. Consequently, we exercise the discretion to cancel the Applicant’s visa.

    DECISION

20. The decision under review is affirmed such that this Tribunal exercises the power conferred by section 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.

We certify that the preceding 260 (two hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Member David Cosgrave

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

Associate

Dated: 26 August 2022

Dates of hearing:	13 and 14 July 2022
Solicitor for the Applicant:	Mr A Alkafaji (Principal – Alkafaji Lawyers Pty Ltd)
Solicitors for the Respondent:	Mr J Kyranis (Senior Associate – Sparke Helmore Lawyers)

ANNEXURE A – Exhibit List

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	Section 501 G-Documents (pages 1 – 146)	Various	23 May 2022
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 – 17)	5 July 2022	5 July 2022
R3	Respondent’s Tender Bundle (pages 1 – 186)	Various	5 July 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1 – 91)	17 June 2022	17 June 2022
A2	Applicant’s Evidence in Reply (pages 1 – 399)	10 July 2022	11 July 2022

ANNEXURE B – Short-Form Decision

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/3731
General Division	)

Re: Mubarak Ahmed Abed Aljorani
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent

DECISION

TRIBUNAL:              Senior Member Theodore Tavoularis
  Member David Cosgrave

DATE:                        25 July 2022

PLACE:                     Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 11 March 2022, to cancel the Applicant’s (Class BC) (Subclass 100) Partner visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

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

Senior Member Theodore Tavoularis  Member David Cosgrave