Andrwas and Minister for Home Affairs (Migration)

Andrwas and Minister for Home Affairs (Migration) [2018] AATA 1965 (2 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2025
Re:Issa Andrwas
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:2 July 2018
Place:Sydney

The decision under review is affirmed.
..................[sgd]..................................................
Senior Member A Poljak
CATCHWORDS
IMMIGRATION – visa cancellation – character grounds – substantial criminal record –fraud and dishonesty – cancellation decision not revoked – whether another reason cancellation should be revoked – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, (2000) 106 FCR 313
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No. 75 – Refusal of Protection Visas Relying On Section 36(1C) And Section 36(2C)(b)
REASONS FOR DECISION
Senior Member A Poljak
2 July 2018

The applicant, Mr Andrwas, is a citizen of Jordan. He was the holder of a Subclass 155 (Five Year Resident Return) visa (visa).
The applicant has an extensive criminal history in Australia involving a great number of offences for fraud and deception between 2002 and 2016. Most recently, on 15 December 2016, the applicant was convicted of 6 counts of dishonestly obtaining property by deception and other related offences as well as escaping from lawful custody. The applicant was sentenced to 3 years and 3 months imprisonment with a 1 year and 10 months non-parole period with conditions.
On 9 January 2017, the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on character grounds. The applicant made representations to the Minister to have the cancellation revoked under section 501CA of the Act. On 9 April 2018, a delegate of the Minister found that the discretion under subsection 501CA(4) of the Act to revoke the cancellation of the applicant’s visa was not enlivened. This is the decision under review in these proceedings.
The issue before the Tribunal in these proceedings is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.
RELEVANT LEGISLATIVE PROVISIONS
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7). Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).
CHARACTER TEST
The applicant has a substantial criminal record in accordance with section 501(7)(c) of the Act and therefore fails the character test. This is not in dispute between the parties.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of Mr Andrwas’ visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)   Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)   The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the Applicant's conduct to date
The nature and seriousness of the applicant’s conduct are relevant considerations when assessing the risk to the Australian community.
The applicant’s criminal history in Australia is substantial and extends over a period of more than 13 years. The extent of his criminal offending is detailed in his National Police Certificate dated 29 September 2017 (“National Police Certificate”). In summary, the National Police Certificate shows that the applicant has been convicted of a range of larceny, property and traffic offences between 2002 and 2016. As a result of his convictions, the applicant has been sentenced to several periods of incarceration of two years or more. Since 2002 the applicant has spent approximately 7 years and 3 months in prison. Some of the most significant offences are detailed below.
On 2 August 2005, the applicant was convicted of two offences of larceny. One offence related to the stealing of an overseas shipping container containing tyres valued at approximately $88,500, while the other involved the stealing of 275 bags of coffee beans valued at $30,725. The applicant committed the offences with a co-accused. On sentencing, Acting Judge Andrew said:
…I am satisfied that both offenders were the instigators and principals in these offences and as submitted were more or less on a level footing with each other and the role that each played in the commission of the offences…
These were both serious offences involving organised and planned crime on a substantial scale and they are deserving of imprisonment of full time custody in my view and I consider that no other alternative is appropriate in the circumstances.
Acting Judge Andrew also notes in the sentencing remarks that the applicant recognised his gambling problem and “what it has cost him in terms of his family relationships as well as his financial losses”. Acting Judge Andrew goes on to state that he is satisfied of the applicant’s remorse and prospects of rehabilitation. He said:
His motivation for committing these offences is attributable mainly it seems to his gambling problems but it is shown that he has attempted to address those issues in goal and attended a number of gambling courses as I have said.
As already said, based on that evidence I am satisfied that he is remorseful and I am satisfied there are prospects of rehabilitation. He has lost his house and could not support his family and has declared bankrupt.
On 18 March 2009, the applicant was convicted of 4 offences: ‘commit s 114 offence, having previous conviction’, ‘enter building/land with intent to commit indictable offence’, ‘destroy or damage property’, and ‘receive property-theft’.
On 14 November 2014, the applicant was convicted of ten counts of dishonestly obtaining a benefit, and two counts of knowingly dealing with the proceeds of crime. The agreed facts of the offences, found beyond reasonable doubt, are set out in the sentencing remarks of Judge Toner of the NSW District Court. The following facts describe the nature of the applicant’s offences:
1.    Strike Force ‘Somersham’ is a NSW Police Force, State Crime Command, Fraud and Cyber Crime Squad investigation into credit card skimming, credit card cleaning and the subsequent unlawful use of the cloned credit cards and credit card data to purchase large quantities of goods from major retail stores.
2.    By way of explanation ‘skimming’ is the process whereby a credit card or other legitimate cardholder uses their legitimate credit card at a point of sale terminal (EFTPOS) machine, to either pay for goods or services. The data stored on the magnetic strip of the credit card that is relevant to account information is known as ‘Track 2’ data. This is the information that persons involved in skimming activity are after. During the transaction, the ‘Track 2’ data is captured by a compromised terminal or other similar device.
3.    Once captured, the ‘Track 2’ data is downloaded at a later time from the skimming device onto a computer and re-encoded onto the magnetic strip of blank or fake plastic cards that have a resemblance to the appearance of legitimate credit cards issued by banks and other financial institutions. These cards may also be embossed with numbers similar in appearance to credit card numbers however the appearance of the card may have no relevance to the actual data that has been re-encoded onto the magnetic strip.
4.    The fake card is then used to make purchases. The offender (the applicant) was identified as been involved in the use of ‘cloned’ credit cards, making thousands of dollars worth of purchases of items including gift cards and cigarettes. Once the gift cards were purchased they were subsequently redeemed at another location.
5.    Large amounts of fraudulent transactions as outlined above were committed by the (applicant) between 15 December 2012 and 9 March 2013 at numerous Woolworths stores within the Sydney metropolitan area. These fraudulent transactions were predominantly made using cloned American Express and MasterCard credit. Closed-circuit television (CCTV) captured the (applicant) committing these offences.
6.    On one occasion the (applicant) entered the store and approached a register where he used cloned credit cards or fraudulently obtained store gift cards to make purchases. The (applicant) utilised the cloned credit cards to make payment for the gift cards by swiping the card through the EFTPOS terminal. The offender also signed the receipts as part of the transaction process and presented the cloned credit card to the store assistant to verify the purchase. The offender portrayed himself on each occasion as being the legitimate cardholder, however he made these purchases without the knowledge or permission of the legitimate account holder.
7.    The (applicant) would repeat this process several times on each occasion, fraudulently obtaining multiple gift cards at a time.
8.    The gift cards purchased were either redeemed on the same day they were purchased or within the following days after being purchased and at different locations from where they were purchased.
The facts detail all the instances in which the offences were committed. Judge Toner noted that the significant aggravating factor that applied to all of the offences was that the applicant was on bail when he committed them. He further stated, “Deterrence, both general and specific, play a very important role in the sentencing process in cases such as these. These are effectively identity theft crimes and are a blight on the community”. Judge Toner described the applicant’s role in the offences as a “labourer” and “someone towards the bottom of the hierarchy of what must be a fairly sophisticated operation”. The amount the applicant received from his participation is not insignificant and is estimated by Judge Toner to be about $58,000 and possibly a further $13,000 odd with further attempted offences. He noted that the applicant had a “significant history of dishonesty” and suspected that the applicant committed the offences because of his gambling addiction. Judge Toner found that the applicant’s prospects of rehabilitation were reasonable; with the caveat that he was doing something about the underlying causes of his criminal behaviour, in particular his gambling addiction.
In 2016, the applicant was convicted of six more offences under section 192E of the Crimes Act 1900 (NSW), being the same offence for which the applicant was convicted in 2014. In sentencing remarks Judge Yehia QC described the offences as follows:
“It is sufficient for present purposes to note that the offender had gone to a number of ATM machines and withdrew various amounts of cash; he used cloned cards to undertake transactions. It did so between 15 and 16 November 2015. The total amount of cash withdrawn from unauthorised transactions using cloned credit cards was $18,862. The police recovered $18,325 in cash, which was in the possession of the offender at the time of his arrest.”
In sentencing, Judge Yehia QC had regard to the impact on public confidence and the impact on victims as relevant matters in assessing the objective seriousness of the applicant's offending and states:
“Whilst I am not persuaded that the offences fall at the lower end of the scale of seriousness, I find that they fall below the middle of the range of objective seriousness… I cannot find the level of planning involved here is above that inherent in offences of this type.
Whilst the amount of $18,862 is by no means insignificant, it is not substantial, having regard to the quantities that are sometimes involved in matters of dishonestly obtaining financial advantages by deception…
That said, the fact that the offender was on conditional liberty for similar offences is a significant aggravating factor in my view.
I note that his parole was revoked because had come to the notice of the proper authorities of the offender had breached the condition not to frequent or visit any place or district designated by the parole officer which included premises where gambling is available.”
In regards to rehabilitation, Judge Yehia QC stated in the sentencing remarks:
“He was gambling and using drugs at the relevant time. I am satisfied that his offending was motivated by desire in particular to fund his gambling addiction. That motivation does not excuse his conduct nor is it a mitigating factor. However, it does distinguish his criminality from that where individuals are motivated by greed or a desire to enrich themselves…
I am guarded about his prospects of rehabilitation and the likelihood of reoffending. It seems to me that without intensive counselling and treatment focused on the offender’s substance abuse issues and gambling addiction the offender is likely to reoffend so as to fund those addictions…
… I am not persuaded that he has an insight into the wrongfulness of his actions, or in particular the impact those actions have on the community.
I am not confident that in the absence of very intensive treatment and monitoring by Community Corrections that he will not reoffend…
Ultimately, however the gravity of the offences and the fact that they were aggravated by virtue of the offender being subject to conditional liberty persuades me that the only appropriate penalty is a term of full-time imprisonment and that he must serve a further period in custody”.
Having regard to the circumstances of the applicant’s criminal behaviour and the compounding nature of his offences over many years, I find that the applicant’s conduct is to be viewed very seriously. I acknowledge that his offences did not involve violence and were not of a sexual nature however, the significant extent of his criminal offending is alarming; coupled with the fact that the applicant frequently committed offences while he was on bail for other similar offences, I find that the nature and seriousness of the applicant’s criminal conduct should be viewed very seriously.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to the Australian community should the applicant engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be serious, and could result in financial harm and loss of property to members of the Australian community.

It is evident that the main contributing factor to the applicant’s offending is his drug and gambling addictions. This has been acknowledged and accepted on numerous occasions by the Courts.
When considering the applicant’s risk of reoffending, I am very concerned that the applicant has frequently committed offences while on bail for similar offences, and that he has committed significant offences only a short period after receiving warnings from the Department regarding the risk to his visa if he were to continue to offend.
In these proceedings, the applicant submits that he previously did not understand the seriousness of his conduct and the seriousness of the cancellation of his visa. He claims that he now understands how serious it is and knows that he will get deported this time. At hearing the applicant was adamant that “this time” he “won’t do anything”. He claims that he “sees it wisely this time” as he has now matured and has spent a lot of time reflecting on his behaviour. The applicant said that he has never committed himself like now and “this time I am committing myself to my son and daughter”.
In a statement dated 18 February 2018, the applicant describes his remorse at his prior conduct and claims that he has adequately addressed his drug and gambling addictions. He states:
“Now that I am free from the drug use and gambling, my mind is clear about how the addiction have destroyed the 1^st chapter of my life…I am very remorseful of all the pain that I have caused to many victims to my family and to myself and to the Australian community as whole.
…
I have positively addressed my drugs and my gambling problems, in prison and I am totally free from those addictions.
Now I am fully rehabilitated and 100% free from addiction and I can see clearly what was triggered my past offences drug and gambling and I am 100% cleared…”
The current representations made by the applicant in these proceedings are not persuasive for the following reasons:
(a)The applicant made similar representations in a statement made, in or about 2008, which contained, inter alia, the following statements:
“I have been in prison since August 2008. I have had a lot of time to reflect on my life and the mistakes that I have made in the past…I have learnt my lesson…I want to be a better person for my kids…I have truly learnt my lesson.”
(b)The applicant subsequently re-offended and engaged in drug use and gambling.
(c)The applicant has twice benefited from decisions by the Department of Immigration and Citizenship (“the Department”) by which he has avoided the cancellation of his visa: first, in 2010, where the Department decided not to proceed with the cancellation of the applicant’s visa under section 501 of the Act; and secondly in 2015, where the Department revoked the mandatory cancellation of the applicant’s visa under section 501(3A) of the Act. In support of his 2010 request to not cancel his visa under section 501 and in support of his 2015 request to revoke the cancellation of his visa under section 501(3A), the applicant made very similar representations to the ones he now makes in these proceedings. Representations which he has failed to uphold and follow through which is evident from the continuation of his drug and gambling addictions over the years and his pattern of re-offending. The applicant now seeks to demonstrate that he is rehabilitated. Unfortunately for the applicant, he did not take his previous chances seriously and squandered those opportunities by continuing to reoffend and by failing to adequately address his drug and gambling addictions.
(d)The submissions from the applicant’s solicitor dated 27 April 2010, relevantly provide:
“The visa holder acknowledges that he committed offences of a serious nature…
The visa holder has a history of gambling and drug addiction commencing from approximately 2001.
He states that the motivation for him to commit the offences related to his gambling addiction and his gambling debts.
We submit that he has taken steps to address his addictions and shown remorse in pleading guilty to the offences…
The visa holder states that if he is given a chance remain in Australia, he would not repeat the mistakes of his past.
He states that he has learned from the mistakes and is currently in a different position to which he was before.
We submit that there is no significant risk that the conduct would be repeated…
The visa holder states that he has rehabilitated and has undertaken a number of courses whilst he was in prison: namely Alcoholic Anonymous, Enough is Enough, Best Bet, Responsibility Relationships and Reintegration, Getting Smart.
The visa holder has acknowledged his mistakes and taken responsibility for his crimes. He pleaded guilty to all the offences and has shown remorse for his actions.
He states that he is reformed and truly wants to be a good law abiding citizen.
…
We note that this is the first warning for the visa holder and it has shaken him up considerably. He realises that there is a real risk that he may be deported from Australia if he continues to break the law.
He states that he has learnt from his past mistakes and would never repeat them again. He states that he will be law-abiding citizen for his sake and the sake of his children.”
(e)On 14 January 2011, the applicant signed the following acknowledgement:
“I, (the applicant) acknowledge that I have received the Notice of decision not to cancel Visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa granted to me if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”
(f)The applicant subsequently re-offended and engaged in drug use and gambling.
(g)Submissions from the applicant’s solicitor dated 31 January 2015, relevantly provide:
“The applicant does not resile from his past behaviour and offences accepting full responsibility for his actions and egregious conduct… He is deeply ashamed and contrite for being engaged whilst under the influence of the drugs, cocaine and Ice in criminal activities involving receiving stolen goods and most recently, fraud involving ATM machines.
…
(The applicant) without excusing or resiling from responsibility for his offences would like it be known to the delegate that the damaging and derogatory influences previously present in his life including illicit Ice and Cocaine abuse together with his problem gambling issues, no longer feature in his life…
The applicant believes that he has emotionally matured. For the last twelve months, on deep personal reflection he has developed an appreciation for the extent and consequence of his antisocial behaviour brought on by his moral turpitude in turning to drugs; inducing his downward spiral in his personal conduct. And the jeopardy he has placed himself if he has to leave a peaceful, open society for a socially structured hierarchical and poor society like Jordan.
…
As a life strategy and as he plans his future whatever the outcome he has forsworn drugs and promised himself and family not to take them ever again and will continue to seek and access professional support and medical help. He has willingly and enthusiastically engaged in various support programs whilst in goal and in detention to help himself expect the scourge of drug dependency and to understand how he succumbed it…
Should he be allowed to remain in Australia, he will ensure that he will play a consistent and positive role in the children’s lives. They are approaching a crucial stage and a male ‘father’ role model is very important to keep the two teenagers anchored. The fact he has made mistakes in the past is far from ideal, however the adverse consequences of those mistakes has made him even more anxious to protect his children and steer them away from trouble. He feels that his presence would be greatly missed by them. A huge part of my grounding in life and their lives would be lost if he were to be forced to leave Australia.
…
He acknowledges through his thoughtlessness and immaturity he has breached his trust with the community and now seeks through the delegate the indulgence of the Australian community on this occasion to make one last allowances for his trespasses induced by his ill-considered involvement with ice and other illicit drugs as a form of self-treatment.”
(h)On 27 February 2015, the applicant signed the following acknowledgement:
“I, (the applicant) acknowledge that I have received the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”
(i)The applicant subsequently re-offended.
(j)In report dated 22 February 2013, Hanan Dover, forensic and consultant psychologist, detailed the following risk formulation:
“Overall, the view is that there is current moderate risk of reoffending so long as he accesses the necessary psychiatric, psychological and community support systems in his current environment, these issues can be manageable. There is a high concern for gambling behaviour which appears to be the current trigger to his offending behaviour. Appropriate and consistent treatment will decrease the risk of reoffending.” [Emphasis added]
(k)In a report dated 13 December 2016, Dr Olav Nielssen, psychiatrist, diagnosed the applicant with substance use disorder; drug induced psychotic illness, in remission; depressive illness and a gambling disorder. Dr Nielssen was of the opinion that the applicant recognised the need to complete an addiction rehabilitation program following his most recent offences. He noted that the applicant is likely to need a longer term treatment for depression by a psychiatrist, as well as assessment of the need for continued treatment with antipsychotic medication. It is also recorded in the report that the applicant has investigated treatment for substance abuse and he advised Dr Nielsen that he wished that he had gone to a drug rehabilitation centre before he committed the offences. It is noted that he has since been accepted to the long-term drug rehabilitation centre Wayback Ltd to complete a drug rehabilitation program before returning to live in the community. This is confirmed by the correspondence from Wayback Ltd dated 21 September 2016 and 7 November 2016. There was no evidence before me that the applicant attended Wayback on 1 December 2016. Unfortunately for the applicant, as detailed in the letter dated 7 November 2016, this means that his bed was forfeited and made available to someone else and he has been removed from the waiting list.
(l)There is no other recent expert medical evidence before me in regards to treatment engaged in by the applicant for his psychological condition nor his drug and gambling addictions. The applicant has received little of the treatment that he would require to reduce his risk of re-offending. It appears that the treatment has been limited to the completion of the EQUIPS program, The Best Bet Course in 2009, and the Getting Smart course in 2010. The applicant commenced the EQUIPS Addictions Program while incarcerated in July 2017 and completed the course on 28 September 2017.
(m)At hearing, the applicant gave evidence that his drug use stayed the same during the period between 2005 to 2015. He also confirmed that his gambling did not get better or worse over time but “stayed the same”. This indicates that the applicant’s drug and gambling addictions were not adequately treated or addressed during the period between 2005 and 2015; despite making representations during this period that he was rehabilitated.
(n)The applicant’s evidence is that he ceased drug use prior to entering custody on 16 November 2015 and that he did not have access to drugs in prison. However, a clinical record from the International Health and Medical Services, dated 21 December 2017, notes that the applicant “reported that whilst he was in prison; his psychosis got triggered because he started using substances again.”
The applicant has provided a number of written statements from friends and community members. Nearly all of the referees gave evidence orally at hearing and I address the evidence of each referee below as many speak to the applicant’s character, rehabilitation and support networks in the community.
Taleb (Tony) Ibrahim
Mr Ibrahim provided letters of support in these proceedings dated 1 December 2016 and 24 November 2017, he also attended the Tribunal to give evidence orally at hearing. Mr Ibrahim’s evidence is that he has known the applicant for over 15 years and is willing to offer the applicant employment if he were to remain in Australia. At hearing he said that the applicant has a lot of potential. He said that the applicant’s children “would be devastated to lose their father”.
In cross examination, Mr Ibrahim confirmed that he knew the applicant was a gambler but was not aware of the applicant’s drug addiction. In regards to the applicant’s criminal offences, Mr Ibrahim did not appear to understand the full extent and said that he knew they had to do with fraud but “doesn’t want to know anything else”. He wasn’t aware of the full extent of the applicant’s time in prison.
In regards to his evidence about the applicant’s relationship with his children, Mr Ibrahim conceded at hearing that he only knew about the relationship through what the applicant told him. He has only observed the applicant with his children a couple of times. For these reasons I give Mr Ibrahim’s evidence about the applicant’s relationship with his children limited weight.
Jacob Patterson
Mr Patterson has known the applicant for approximately 20 years and also knows his children. At hearing, Mr Patterson said that he sees the applicant 2 to 3 times a week, sometimes more. His impression of the applicant is that he is a good family man who cares a lot for his children.
In a statement dated 31 March 2017, Mr Patterson says:
“I think (the applicant) has learnt a good lesson in jail he knows his mistakes and has paid the price for his mistakes I think (the applicant) deserves a second chance as he has learnt from his mistakes (the applicant) wants to be a good working man and a good father for his two kids…”
At hearing, Mr Patterson said that he was aware that the applicant had a gambling and drug addiction and that his addictions were the main contributing factor to his criminal offending. Mr Patterson was questioned about the applicant’s understanding of his current situation to which he responded that this time the applicant was serious. He said that in the past the applicant didn’t take his periods of imprisonment very seriously but now it is different. He said that he was certain of the applicant’s state of mind because of the way he is talking about his family and Australia and how he has nowhere to go. He said the applicant is really willing to do everything he possibly can. He said, “I can tell, he is very different to me, he is feeling a lot of heat.”
Mr Patterson said that he is willing to provide the applicant with any support that he can and that he is willing to have the applicant stay in his house until he sorts himself out. While I accept that this is a very genuine and generous offer of support; I note that Mr Patterson previously offered to support the applicant in statements dated 21 September 2009 and 28 December 2014 and the applicant previously lived with Mr Patterson for 2 weeks in 2015 (approximately) after he was released from prison. Despite this support from Mr Patterson, the applicant reoffended.
Ramzi (Jordan) Andrwas
Jordan is the applicant’s grown son. He has provided numerous written letters of support in these proceedings. All of which I have read and considered. At hearing, Jordan said that he has noticed a big change in the applicant’s behaviour and that he was trying to fix his relationship with his daughter and ex-wife. He said that he planned to keep the applicant “on the straight and narrow” and that he doesn’t believe the applicant will make the same mistakes again. While Jordan’s offers of support are commendable, he himself has his own issues with the law, addiction and depression which he needs to address. For this reason, I question the level of support Jordon can provide when he is clearly facing his own issues.
Rimon Haddad
Mr Haddad is the former president of the Australian Jordanian Society (“Society”) and has known the applicant as a member of the community and through his family. At hearing Mr Haddad confirmed that he is providing a reference for the applicant in his personal capacity and not on behalf of the Society. In a written statement dated 19 January 2018, he states:
“Throughout the time I knew (the applicant) I have known him to be a hard-working family man that volunteered time in the Society and helped others in our community and was known as a good person with a big heart and throughout that time I never encountered any wrongdoing by (the applicant).”
At hearing, Mr Haddad said that in regards to the applicant’s criminal offending, he knew “some issues happened” and that the applicant had promised to be a good person. He said the applicant “wasn’t hurting anyone in the community”. Mr Haddad was unclear about what he understood of the offences. He knew that the applicant had spent some time in prison but was not aware of the full extent. He was aware that the applicant had issues with gambling but was not aware of the applicant’s drug addiction.
Mr Haddad offers his support to the applicant and said at hearing that if the applicant was released, he will help him to get a job, find a place to live and will help him communicate with his family. However, he stated that if the applicant reoffends again; he will no longer support him.
Atef Safatli
Mr Safatli claims to have been a friend of the applicant for at least 10 years. He says that he knows the applicant’s children and has met his ex-wife on one occasion. In a statement dated 31 May 2018, he states:
“… I know he has been in jail and he has made mistakes because of his addiction but this time now in detention has made him realise how much he has to lose and he has realised the changes he has made to become a better man for hes children need their father. I believe that he has changed for a good and will work to be the best man he can for his children, his family, his community, and for the Australian community…”
At hearing, Mr Safatli was aware of the applicant’s drug and gambling addiction and was aware of his criminal history. He described the applicant as a lovely person and a good man. He said that if the applicant were released, he would try to get him a job and offer him support as a friend. In cross examination it came to light that Mr Safatli had his own criminal record and was currently on a good behaviour bond. It is questionable whether Mr Safatli is an appropriate person to be providing support to the applicant.
Fr Ephram Abbassi
Fr Abbassi, as the parish priest of the St Elias Antiochian Orthodox Church, has known the applicant for approximately 5 to 6 years. In a statement dated 25 December 2014, he describes the applicant as honest.
At hearing, Fr Abbassi said that he knew about the applicant’s problems and that he had gone to Court many times for offences related to fraud and dishonesty. He was not aware of the applicant’s drug addiction. He said that he knew that the applicant generally needed help in 2014 but since then he has committed further offences. Fr Abbassi said that since the applicant committed further offences in 2016, he now needs more than help “but no one is beyond hope”. He advised that he would offer the applicant support through Bible studies, spending more time to sit with him, seek help from other parish members if needed and offer courses to the applicant to try to help.

The support offered from Fr Abassi is positive. However, the nature of the courses and support on offer from the congregation is unclear and the applicant has not provided any evidence about his plans to attend such courses.
Ahmad Warwar
Mr Warwar provided a handwritten statement dated 2 June 2018, which details his understanding of the circumstances and events that occurred on 15 November 2015. At hearing, Mr Warwar confirmed and elaborated on his version of events. I give this evidence very little to no weight as it is inconsistent with the evidence before the Court which is contained in the sentencing remarks of Judge Yehia SC of the District Court of New South Wales. Additionally this is the first time an alternative version of events has been provided, Mr Warwar did not give a statement to police at the time that the offences occurred and is not supported by the applicant’s evidence in these proceedings.
I note that in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, (2000) 106 FCR 313, Branson J relevantly concluded:
[43] … although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based … policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals …
As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
Gorge Sam Rami
Mr Rami says that he has known the applicant for nearly 10 years and is a personal friend. He provided a statement in these proceedings dated 2 June 2018 in support of the applicant. At hearing he stated that his friend, Nasser Baydoun, prepared his statement for him. He was aware that the applicant had been in prison but did not know about the most recent time. Despite saying in his written statement that he has seen the applicant as a family man and a loving father to his kids, he did not appear to know anything about the applicant’s family.
Nasser Baydoun
Mr Baydoun has provided a statement in these proceedings dated 2 June 2018 which is almost identical to that of Mr Rami. At hearing, he said that he was a personal friend of the applicant and had known him for a very long time. He described the applicant as a family man and a loving father however when tested on his evidence he did not know the names of the applicant’s children and was very vague in his answers about his relationship with the applicant. He could not recall the last time he had seen him. He did not want to know what the applicant was imprisoned for and did not know anything about the applicant’s criminal offending and did not know about the applicant’s drug addiction.
Md. Nur-A-Alam Khan (Alam Nurakhan)
Mr Khan provided a written statement dated 17 May 2018, in which he said that he found the applicant to be a “nice, friendly person”, who “presented himself with no harm to others or any community”.
Mr Khan was the neighbour of the applicant for almost a year. At hearing he said that he personally doesn’t know the applicant very well and says that they sometimes would have a coffee together. He did not know of the applicant’s drug addiction and didn’t know of the applicant’s criminal history.
Ibrahim Al-Darwich
Mr Al-Darwich is an ex-employer and potential future employer of the applicant. He provided a statement in support of the applicant dated 1 June 2018 in which he states that his experience with the applicant “told me he presents no physical risk to the community and he will present no financial harm to the members of the community should he have a full-time or casual jobs that fill his time schedule with intensive rehabilitation programs and reporting duties on weekly basis”.
At hearing, Mr Al-Darwich said that he did not know anything about the applicant’s convictions or what he was charged with and had only written his statement on what the applicant was like when he worked for him in approximately 2013. When pressed about the comments made in his statement it became apparent that he was unfamiliar with its contents.
In addition to the above referees, the applicant also relies on statements provided by Nosir Kabite dated 2 June 2018, Alex Romano dated 1 June 2018 and a statement of Arsha Safatli dated 3 January 2018. These individuals were neither providers of oral evidence at hearing nor were cross-examined about the contents of their statements. In any event, I note that these statements provide very little detail about what they knew about the applicant’s criminal offending. As such I give them limited weight.
I note that since entering custody on 16 November 2015, the applicant has not incurred any institutional misconduct. In the Pre-release Report dated 18 August 2017, it is noted that the applicant displayed insight into his offending behaviour by addressing his illicit substance abuse by engaging in ADO intervention in custody. There is also evidence before me that the applicant will be offered full time employment if he is released into the community. I consider that these factors reflect positively on the applicant.
I note that in the applicant’s statutory declaration dated 22 May 2018, he proposes that he is willing to abide by a “contract” to comply with conditions imposed by the Tribunal and the Department. This proposition is misconceived. It is beyond the power of this Tribunal to impose conditions upon the applicant or upon his visa.
On balance, having regard to all of the evidence before me, particularly the applicant’s extensive record of criminally offending, I am of the opinion that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community. The repeated and persistent nature of the applicant’s criminal offending and the obvious lack of deterrence by imprisonment, threat of visa cancellation and the threat of deportation back to Jordan weighs very heavily against the exercise of the discretion to revoke the cancellation of the applicant’s visa. His behaviour demonstrates a lack of insight and remorse into his criminal offending and gives me little comfort when considering his risk of reoffending. He has had many, serious ‘wake up calls’ through multiple periods of incarceration and previous warnings regarding the cancellation of his visa; yet he has continued to re-offend, often while on bail for previous similar offences. I am also not convinced that he has adequately addressed his drug and gambling addictions which are the main contributing factors to his offending behaviour.
For all of the above reasons, I find that the risk to the Australian community weighs heavily in favour of a decision that the applicant’s visa be cancelled.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2 of the Direction provides that decision-makers must make a determination about whether cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is, would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
Sub-paragraph 13.2(4) sets out factors which must be considered where relevant. It provides:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fill a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant’s ex-wife gave evidence orally at hearing and also provided two letters in support. She married the applicant in 1997. They divorced in the early 2000s (approximately 2002, this is not clear on the evidence but nothing turns on this point). They have 2 children from the relationship, a 16-year-old daughter who is an Australian citizen, and a son who is 20 years old. For the purposes of this primary consideration, only the daughter’s interests are considered as she is less than 18 years of age. (For completeness, I note that in the Personal Circumstances Form signed on 13 February 2017, the applicant records the names of 4 additional minor children in addition to his son and daughter. No dates of birth are given for these children and no evidence is before me to indicate that these children are under 18 years of age and there is no evidence in respect to the nature of their relationship with the applicant.)
In a statement dated 17 May 2018, the applicant’s ex-wife states that her “daughter told me that she needs her father to be in Australia and would like him to be involved into her life and continue to give her care and love she required in the critical period from a struggle teenager to a young adult”. At hearing, the applicant’s ex-wife said that the applicant was a decent, loving and attentive father who was never abusive and was very encouraging towards the children. She stated that both children were scared and did not want their father to be returned to Jordan. The applicant’s ex-wife also stated that her current partner is a “fabulous role model”. She said that although he was not the biological father, he was a tremendous amount of help with her daughter’s school work and always provided food, shelter and medication.
The applicant’s daughter gave evidence orally at hearing and provided two written statements; dated 12 February 2017 and 18 May 2018. In the handwritten letter dated 12 February 2017, the applicant’s daughter said:
“I would like my father, (the applicant) to stay in Australia because I believe he can change. I have faith that he wants to be a better father to me. I think that him being in jail for so long has taught him a lesson. The lesson was, you do wrong, you can lose family and lose the freedom you had. Another reason is if he gets deported to Jordan I will not be able to visit due to all the wars that have been going on in the Middle East my whole life. I am 15. And he will lose all opportunities of him being there to support me from been a girl to a lady, who hopes to one day walk her down the aisle”.
In the statement dated 18 May 2018, the applicant’s daughter said:
“I believe the deportation of my father is non-beneficial to either of us as I think he has changed. With my help and support I believe he will not get into trouble and will support me and make up for the loss time. I want to have him in my life while I keep growing. I need my father and I believe he needs me and he will be there for me from now on. And the financial support he will be able to provide for me cannot be achieved if he is sent to a third world country.”
At hearing, she said that she was “kind of close” to her father but did not see him much and that she wished they were closer. She said that the last time she saw the applicant was a couple of years ago in approximately 2016 and that she currently lives with her mum full time but talks to the applicant over the phone. In regards to the reasons for not seeing the applicant more often, she stated that her mum didn’t want her to visit her father in prison and when he was not in prison or detention, travelling to his place wasn’t possible because he was about 1 ½ to 2 hours away and she had to attend school.
The applicant’s daughter, son and ex-wife claim that if the applicant is deported to Jordan, they will never see him again. This submission is not taken any further by the applicant and is not supported by any other evidence addressing the restrictions on travel. There is also no evidence before me demonstrating that the applicant could not maintain contact with his children in other ways such as via telephone or other means.
Having regard to the evidence, I accept that the best interests of the applicant’s daughter may be served by the cancellation decision being revoked. This would allow for the possibility of face-to-face contact with her father during the remainder of her minor years and would allow him to be physically present in her life during the period that she transitions into womanhood. However, I give this consideration limited weight because the applicant has had a limited relationship with his daughter over the years. This is predominantly due to the fact that the applicant has spent a significant amount of her life in prison or detention. Another reason why this consideration should be given less weight is because the applicant’s daughter will be turning 18 in just over a year, limiting the extent to which the applicant will play a parental role in the future.
On balance, I consider that this primary consideration is not outweighed by the other primary considerations such as the expectations and protection of the Australian community.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. Of the 21 years he has spent in Australia, he has spent more than seven years in prison and additional time in immigration detention. His offending behaviour commenced only five years after arriving in Australia.
In making the Direction, the Minister has made it clear that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.
The serious nature and extent of the applicant’s criminal history demonstrates a prolonged disregard for Australian laws and for the impact his conduct has on the Australian community. Having twice received further opportunities to remain in the Australian community despite his offending, and having now offended again, the community would now expect that the applicant would be denied the opportunity to remain in Australia. He would no doubt have exhausted the trust and patience of the Australian community who would now expect that it is no longer appropriate for it to bear the cost of the resources expended in criminal justice and corrections involved in responding to the applicant’s offending.
This primary consideration weighs strongly in favour of not revoking the applicant’s visa cancellation.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65
Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia, non-refoulement obligations, and the extent of impediments if the applicant were removed from Australia.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the person began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
I accept the applicant has strong family ties to Australia.
His children reside in Australia full time and have provided evidence in these proceedings that they wish to have their father in their lives and in Australia. I also note that the applicant’s ex-wife may be impacted by the applicant’s departure to Jordan, particularly as a result of the emotional impact on her children.
A large number of friends and community members willingly attended the Tribunal to give evidence in support of the applicant and I accept that they may be impacted by the applicant’s removal to Jordan. I also acknowledge that the applicant has a significant number of family members who reside in Australia who are also affected by this decision, however, to what extent is unknown on the evidence.
The applicant originally submitted that he had a fiancé in Australia whom he intended to marry and start a life with. At hearing, the applicant confirmed that that relationship broke down around or in early 2018. He no longer had any immediate plans to marry.
As already stated the applicant arrived in Australia 21 years ago and has resided continuously in Australia since that date. The applicant was convicted of his first criminal offences approximately 5 years after his arrival in Australia. In accordance with subparagraph 14.2(1)(a)(i) of the Direction, I place little weight on the time that the applicant has been a resident in Australia.

Other than the applicant working for approximately 10 years in Australia and possibly paying taxes during that time, I have very limited evidence of the applicant’s positive contributions to the Australian community.
For the above reasons, I find that this consideration favours the applicant however; it is significantly outweighed by the relevant primary considerations.
Non-refoulement obligations
It is unnecessary in these proceedings for me to determine whether non-refoulement obligations are owed in respect of the applicant because he is able to make a valid application for protection visa. Direction No. 75 – Refusal of Protection Visas Relying On Section 36(1C) And Section 36(2C)(b) requires decision-makers who are considering an application for a protection visa to first resolve issues under s.36(2), and then to turn to s.36(1C) or (2C), and finally to consider if residual character concerns remain, s.501(1).
The applicant accepts that international non-refoulement obligations are not a relevant consideration in these proceedings. It is accepted by the applicant that his claims made in regards to his safety and welfare upon returning to Jordan as a result of political unrest, his faith and an alleged blood feud, are to be considered as impediments if removed.
Extent of impediments if removed
The applicant is in his early 40s and arrived in Australia 21 years ago. He has spent most of his early life in Jordan. There is no substantive language or cultural barrier to the applicant returning to Jordan.
The applicant claims to have significant concerns about returning to Jordan. I have had regard to the potential impediments if the applicant were to be removed, particularly:
(i)Difficulties the applicant would face as a Christian in a predominantly Muslim country;
(ii)The applicant not having served in the military;
(iii)The applicant’s current lack of employment (prospects) or accommodation in Jordan;
(iv)The applicant’s limited family in Jordan who could offer him support;
(v)The applicant’s need for medical treatment and mental health issues;
(vi)The potential danger faced by the applicant as a result of a “blood feud”. However, there is no evidence to support the details of such a blood feud nor is there any evidence suggesting that the applicant is subject to any risk; and
(vii)Political unrest in Jordan.
I have had regard to numerous news clippings and the country information provided in these proceedings. The nature and extent of the above impediments are not established on the evidence to be of a significant nature.
There is evidence before me that the applicant is affected by health conditions which require medical treatment. These include an eye injury sustained while in detention, treatment of a hernia and most significantly, the continued treatment of his diagnosed mental health condition. I accept that it may be more difficult for the applicant to obtain treatment for his mental health condition in Jordan. However, having regard to the report of the Department of Home Affairs, entitled Jordan: Cl180507163736778 - Mental Health Services - Drug Rehabilitation Services, it appears that mental health treatment is available if the applicant wishes to seek such treatment. Although I do accept that the applicant would have to re-establish a relationship with a medical provider and mental health specialist and I accept that the level of care available in Jordan may not be equal to that offered in Australia.
For the above reasons, I accept that the applicant will face a period of adjustment in Jordan and face certain impediments. This factor favours the revocation of the cancellation of the applicant’s visa, however it is significantly outweighed by the primary considerations of the risk to the Australian community and the community’s expectations.
CONCLUSION
For all the above reasons, I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.
The decision under review is affirmed.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.......................[sgd].............................................
Associate
Dated: 2 July 2018

Date(s) of hearing: 7 & 8, 13 June 2018

Solicitors for the Applicant: Lily Chen & Associates

Solicitors for the Respondent: Minter Ellison

[2018] AATA 1965

2 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	7 & 8, 13 June 2018
Solicitors for the Applicant:	Lily Chen & Associates
Solicitors for the Respondent:	Minter Ellison