Anees and Minister for Immigration and Border Protection (Migration)

[2016] AATA 1090

Anees and Minister for Immigration and Border Protection (Migration) [2016] AATA 1090 (23 December 2016)

Division	GENERAL DIVISION
File Number(s)	2016/5428
Re	Nauroze Anees
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	23 December 2016
Place	Melbourne

The Tribunal affirms the decision under review to refuse to grant Mr Anees’ application for a visa under section 501(1) of the Migration Act 1958.

[sgd]........................................................................

Dr Damien Cremean, Senior Member

Catchwords

IMMIGRATION AND BORDER PROTECTION – application for Partner (Temporary) (Class UK) visa refused – failure to satisfy character test – applicant convicted of various violent and other crimes – whether serious risk to Australian community if applicant re-offended – whether Australian community would expect application to be refused – decision affirmed.

Legislation

Migration Act 1958 (Cth)

Secondary Materials

Ministerial Declaration no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

23 December 2016

INTRODUCTION

1. The Applicant, Mr Nauroze Anees, makes an application to review the decision (reviewable decision) of a delegate of the Minister for Immigration and Border Protection (the Respondent) made under section 501(1) of the Migration Act 1958 (Cth)(the Act) to refuse his application for a Partner (Temporary) (Class UK) visa.

2. The application is made under section 500(1)(b) of the Act which allows applications to be made to this Tribunal for review of decisions made under section 501 subject to section 501(4A) of the Act.

3. Section 501(6)(d) of the Act provides that a person does not pass the character test  if there is a risk that the person, in the event of them being allowed to enter or remain in Australia, would engage in criminal conduct in Australia.

4. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if that person does not pass the character test, as defined in section 501(6).

5. Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act and by section 499(2A) of the Act that person or body must comply with a direction made under section 499(1).

6. Pursuant to section 499(1) of the Act the Minister has given Direction No 65 on 22 December 2014 (the Direction). Paragraph 6.1(1) of the Direction specifies that the objective of the Act is to regulate, in the national interest, the coming into and presence in, Australia of non-citizens.

7. Paragraph 6.2(1) of the Direction states 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. It then states that the principles set out in paragraph 6.3 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.

8. Paragraph 6.2(3) of the Direction specifies that such principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501... It states also that the relevant factors that must be considered in making a decision under section 501 are identified in Part A and Part B while factors that must be considered in making a revocation decision are identified in Part C of the Direction.

9. Paragraph 6.3 of the Direction is as follows:

   (1) Australia has a sovereign right to determine whether non-citizens who
   are of character concern are allowed to enter and/or remain in
   Australia. Being able to come to or remain in Australia is a privilege
   Australia confers on non-citizens in the expectation that they are, and
   have been, law-abiding, will respect important institutions, such as
   Australia’s law enforcement framework, and will not cause or threaten
   harm to individuals or the Australian community.

   (2)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 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 consideration 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 that non-citizen’s visa should be cancelled, or
   their visa application refused.

10. Part B of the Direction relates to visa applicants and thus relates to the Applicant.

11. Paragraph 11(1) of the Direction specifies:

    In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal and other serious conduct;

    b)The best interests of minor children in Australia; and

    c)Expectations of the Australian community.

12. Paragraph 12 (1) of the Direction specifies:

    In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims; and

    d)Impact on Australian business interests.

13. Paragraph 12.1(1) of the Direction specifies :

    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment  (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    Outline

14. The Applicant, Mr Nauroze Anees, was born on 6 January 1987 and is of Pakistani origin. He is 29 years old.  He first arrived in Australia on 20 May 2007 on a Student (Temporary) (Class TU) visa issued under the Act.  Despite Mr Anees’ visa being cancelled on 15 April 2011 for non-compliance with the conditions of the visa, he remained in Australia. Mr Anees undertook studies at MIBT Deakin leading to him being awarded a Diploma of Commerce in 2007.

15. After some time he enrolled in the Bachelor of Commerce degree at Deakin University and commenced studies. Whilst studying, he participated in indoor soccer with other students. Out of doing so he met a friend, Mr Hipwell.

16. Whilst Mr Anees was studying he also met Ms Ludmila Crouch, whom he says he fell head over heels in love with. Mr Anees and Ms Crouch subsequently entered into a relationship. As the relationship developed, Mr Anees learned that Ms Crouch had quite complex mental health issues and that, he says, she was diagnosed with mania and psychosis. As a result of Ms Crouch’s mental health issues, Mr Anees decided to devote himself to her 100% to support her through her challenges. Consequently, his studies suffered and he stopped studying with the result that his student via was cancelled. Mr Anees supported Ms Crouch on many difficult occasions, it becoming the main focus of his life, including through various hospital admissions.

17. Additionally, as a result of Ms Crouch’s mental health issues, Mr Anees did not turn his mind to financial issues. He stated that he forgot about other issues such as my visa and my financial situation as I spent all my time caring for her. 

18. Mr Anees and Ms Crouch (whom Mr Anees referred to as his partner during the hearing) had been living at Ms Crouch’s mother’s house in Seaford, a bayside suburb, until Ms Crouch was hospitalised again. He stated that he could no longer keep living at that property because his partner’s mother had people coming to stay, so he took up living in his car.

19. At one point his Ford vehicle he had been living in and also everything in it was seized and disposed of by Dandenong Council, as Mr Anees was unable to pay the fine which was said to be owing to the Council.

20. After this Mr Anees says he was left homeless and without any possessions but he was still committed to his partner, holding the view that love conquers all.

21. Consequently, Mr Anees began living on the streets. In his Statutory Declaration (Exhibit A6), he states that he had a shopping bag which… carried any left over food I could find, a small knife to prepare food that I found, for example, fruit, and my silver religious necklace that my mother had given me from Pakistan.

22. After this, and over a period of about three years, there began a series of offences which escalated in seriousness. It was in these circumstances, or in this context, that the following offences occurred.

    Mr Anees’ offences

23. On 19 January 2010 Mr Anees stole some goods, including clothing from David Jones. He was convicted of theft, possessing a controlled weapon without excuse and dealing with property the suspected proceeds of crime on 25 July 2011.  He was found to be carrying a large kitchen knife as well as stolen items of clothes and jewellery, with the price tags still intact. He received a community based order for 9 months to complete 75 hours of community service.

24. On 17 January 2011 Mr Anees was sentenced on two charges in relation to driving while his licence was suspended, For each charge he was sentenced to a two-month suspended sentence. His licence was also suspended for two months. . Mr Anees was also fined without conviction for failing to obey a traffic light and using an unregistered vehicle.

25. On 27 July 2011 Mr Anees was arrested at Monash Clayton Motor Inn in relation to charges of obtain property by deception; namely, using stolen credit cards to purchase goods from various stores. In his oral evidence, Mr Anees stated that he was unable to remember the details of these offences. According to the police record, Mr Anees used the stolen credit cards to purchase goods such as a DVD player, shaver and shoes. Mr Anees stated that he could not recall using the credit cards to purchase a DVD player.

26. On 22 August 2010 Mr Anees and his partner were celebrating their anniversary at Chadstone Shopping Centre, watching the film Salt at the cinemas. Mr Anees gave evidence that after the film had ended, a group of young people started to bully his partner, who had been laughing during the film. He stated that the group blocked his partner’s way by putting their leg in the way. Mr Anees stated that he initially thought that they were joking, but the group eventually started surrounding [his] partner and punching and kicking her. He says that he jumped in front of [his] partner to protect her from those people and tried to get them away from her. In his oral evidence, Mr Anees stated that he estimated the members of the group to be aged between 19 and 21 and not older than 26 years of age. On 17 August 2011 Mr Anees was charged with recklessly causing injury and he was sentenced to three months’ imprisonment.

27. Mr Anees was placed in immigration detention following him serving his term of imprisonment. On 20 January 2012 he lodged an application for a combined Partner (Temporary)(Class UK Subclass 820) and Partner (Residence)(Class BS Subclass 801) visa. Mr Anees was released from detention on a Bridging visa in January 2012.

28. On 17 October 2013 Mr Anees was sentenced on three charges of theft of goods from Coles supermarket in Oakleigh, namely of bed sheets and food. He was also sentenced on charges of assault with a weapon and threat to inflict serious injury. Mr Anees was placed on a 12 month community corrections order with conditions that he attend for treatment and rehabilitation, in addition to judicial monitoring.

29. Mr Anees’ application for a partner visa was refused on 20 November 2012 as he was not in a spousal or de facto relationship with the sponsor, Ms Ludmila Crouch. This decision was appealed by Mr Anees to the former Migration Review Tribunal (the MRT). On 6 November 2013 the MRT remitted the decision on the basis that at the time the visa application was made and at the time of the MRT decision the Applicant and Ms Crouch were in a spousal relationship.

30. On 8 April 2015 Mr Anees received a notice of intention to consider refusing the application for visa under section 501 of the Act by the Visa Applicant Character Consideration Unit. Mr Anees was notified on 4 October 2016 that a delegate of the Minister had refused to grant Mr Anees’ application for a visa under section 501(1) of the Act.

31. Mr Anees appealed the delegate’s decision to this Tribunal on 10 October 2016.

32. In his oral evidence, Mr Anees stated that his father was wealthy by Pakistani standards and upper middle class. He stated that he had a comfortable life in Pakistan and didn’t even have to wash [his] own dish[es]. However, Mr Anees stated that he did not, or could not bring himself to ask his father for financial assistance, as he was too ashamed to do so.

33. The Applicant’s Victoria Police Criminal History Report is as follows:

Court	Date	Offence	Count	Result
Werribee Magistrates’ Court	17/10/2013	Theft-from shop (Shopsteal) Shop theft- less than $600 Threat to inflict serious injury Theft Assault with weapon	Convicted and a Community Correction Order for 12 months. The Offender is required to attend the Carlton Community Corrections Centre by 21/10/2013 by 04:00PM. The order commences on 17/10/2013 with the following conditions: Treatment and Rehabilitation Undergo the following treatment and rehabilitation: -Mental Health assessment and treatment as directed. This condition starts on 17/10/2013 and goes for 12 months. Judicial Monitoring Return to the Werribee Magistrates’ Court on 10/04/2014 at 09:30AM for a Judicial Monitoring hearing. This condition commences on 17/10/2013 for a period of 12 months. Convicted and a Community Correction Order for 12 months. The Offender is required to attend the Carlton Community Corrections Centre by 21/10/2013 by 04:00PM. The order commences on 17/10/2013 with the following conditions: Treatment and Rehabilitation Undergo the following treatment and rehabilitation: -Mental health assessment and treatment as directed This condition starts on 17/10/2013 and goes for 12 months. Judicial Monitoring Return to the Werribee Magistrates’ Court on 10/04/2014 at 09:30AM for a Judicial Monitoring hearing. This condition commences on 17/10/2013 for a period of 12 months. Forfeiture order made by consent Order all Property/s seized by forfeited and destroyed.
Werribee Magistrates’ Court	17/10/2013	Contravene community-based order	Proven
Frankston Magistrates’ Court	20/09/2011	Variation re 25/07/2011 Theft-from shop (Shopsteal) Possess controlled weapon without excuse Deal property suspected proceed of crime Fail to answer bail	2	Variation of community based order. Order varied. Without conviction community based order for 9 months. To perform 75 hours unpaid community work.
Melbourne Magistrates’ Court	17/08/2011	Recklessly cause injury Obtain Property by deception	13	3 months imprisonment. Concurrent. Effective total State term imposed is 3 months Time held in custody, 22 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with order State sentences imposed this day. Aggregate 1 month imprisonment. Concurrent. Effective total State term imposed is 3 months Time held in custody, 22 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with other State sentences imposed this day
Melbourne Magistrates’ Court	17/08/2011	Breach re 17/01/2011 Drive while authorisation suspended	2	Suspended sentence wholly restored. The restored term to be served is 2 months. Effective total State term imposed is 2 months Concurrent with other State sentences imposed this day as ANEES, MAUROZE.
Melbourne Magistrates’ Court	25/07/2011	Theft-from shop (Shopsteal) Fail to answer bail Possess controlled weapon without excuse Deal property suspected proceed of crime	2	Without conviction, a Community Based Order for 9 months. The Offender is required to attend the Frankston Community Corrections Centre by 27/07/2011 by 04:00PM. The order commences on 25/07/2011 with the following conditions: To perform 75 hours of unpaid community work over 9 months. All core Community Based Order conditions to apply. Without conviction, a Community Based Order for 9 months. The Offender is required to attend the Frankston Community Corrections Centre by 27/07/2011 by 04:00PM. The order commences on 25/07/2011 with the following conditions: To perform 75 hours of unpaid community work over 9 months. All core Community Based Order conditions to apply. Property/s seized be forfeited and destroyed. Without conviction, a Community Based Order for 9 months. The Offender is required to attend the Frankston Community Corrections Centre by 27/07/2011 by 04:00PM. The order commences on 25/07/2011 with the following conditions: To perform 75 hours of unpaid community work over 9 months. All core Community Based Order conditions to apply. Property/s seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister.
Frankston Magistrates’ Court	17/01/2011	Drive whilst authorisation suspended	2	On each charge: Aggregate 2 months imprisonment. Concurrent. Sentence is wholly suspended under S.27 of the Sentencing Act 1991. Operational period is 12 months. Suspended from driving for 2 months. Order on licence effective from 17/01/2011.

1. I note, as was pointed out to me, that the most recent offending occurred in 2013 and since that time the Applicant has committed no further offences. It is argued that many of the offences which I have listed are of a survivalist kind done in exceedingly necessitous circumstances. I am unclear about whether this is said also of the Applicant’s theft of prescription medicine from a city pharmacist on 14 September 2012.

1. It remains to note that around May 2013 the Applicant regained his work rights and after doing some casual work he secured full time contract work finally becoming, in 2014, employed full time with Collection House Ltd where he has been employed ever since. Collection House has agreed to hold his job open for him which is very considerate.

   Parties’ submissions

2. There is more to be said about the facts of the matter than as set out above.

3. At the hearing the Applicant was represented by Ms Siobhan Kelly of Counsel. The Respondent was represented by Ms Krystyna Grinberg of Counsel.

4. Ms Kelly submitted that the reviewable decision must be set aside and that the Applicant should be found to be of good character. It was submitted that this is evident in a number of ways, including by reference to Mr Anees’ earlier life in Pakistan; his volunteering; his educational achievements both in Pakistan and in Australia; the character witnesses called; the evidence Mr Anees gave; and the various testaments to his good character which have been lodged with the Tribunal as well as by Mr Anees having and holding down a consistent form of employment.

5. Ms Kelly further submitted that the Applicant’s offending occurred during only a defined period and must be seen in the context in which it occurred—opportunistic and survivalist often enough. As I have noted, the Applicant’s offending occurred during the period of January 2011 to October 2013.

6. It was further submitted that the Applicant in effect made a number of poor choices from which he has, or should be viewed as having, now moved on from, referring especially to his job and to a ready support base, as well as a changed relationship with his father. In his oral evidence, Mr Anees stated that the events which gave rise to his offending in the period from January 2011 to October 2013 were alien circumstances to him. He stated that during this time he had no right to work and was supporting a partner who was very sick and frequently in hospital. As I have mentioned above, Mr Anees stated that was unable to ask his father for financial assistance, as he was too ashamed to do so.

7. However, Mr Anees contended that if he was faced with similar pressures again, his actions would be different. He pointed to a strong network of friends and stated that he would not be afraid to ask for help anymore, He further stated that he has dealt with every challenging situation and done some very productive things.  In light of this, Ms Kelly also submitted that I should be satisfied that Mr Anees is not or is no longer a risk to the Australian community in terms of offending or re-offending and that he has now learned his lesson and has learned how to make better choices. In fact, Ms Kelly submitted, there would be perhaps even less of a risk of re-offending by the Applicant in contrast to any other member of the Australian community, because he doesn’t get a second chance. Consequently, if faced with the same situations as gave rise to his offending, it is submitted I should find Mr Anees would choose differently.

8. In regards to the expectations of the Australian community, Ms Kelly submitted that the Applicant should be given another go. In other words, that there is an expectation by the Australian community that once an offender has served their time, they will be able to reintegrate back into the community. She further submitted that Mr Anees should be judged by his choices and actions during the past three or four years, where he has demonstrated exemplary behaviour. In fact, it was submitted Mr Anees has not made bad choices when confronted with stressful circumstances during those last few years. Rather, he has learned to make different choices than previously. Ms Kelly also pointed to the fact that Mr Anees is now regarded as a valued employee, with an impending employment offer, should he be released from detention.

9. In summary, Ms Kelly for the Applicant submitted that, in effect I should find the Applicant satisfies the character test and that in any event a discretion should be exercised in his favour.

10. Although distinct reference was not made to them in closing remarks, materials on file with the Tribunal indicate that, if the reviewable decision is not set aside and the Applicant is returned to his native Pakistan, there is concern over religious persecution in Pakistan and concern also over mental health services there.  In his Statutory Declaration to the Tribunal, Mr Anees stated that he does not identify with being Muslim anymore and that if returned to Pakistan, he does not want to be forced to pray 5 times a day, neither does [he] want to be forced to practice some other religion. He further states that if returned to Pakistan he will be forced to be someone [he] is not. In relation to mental health, Mr Anees states that in Pakistan a mental health condition such as anxiety can be perceived to be a stigma in society, and the lack of treatments makes it all worse. He does not believe that he will receive adequate treatment for his mental health if returned to Pakistan.

11. Alternatively, the Respondent submits that the reviewable decision should be affirmed. Ms Grinberg submitted that with regards to the Applicant satisfying the character test, I should in effect find the evidence of the character witnesses called on his behalf unsatisfactory in various ways.

12. Overall, it is submitted by the Respondent that I should consider that the Applicant’s evidence was selective and evasive.  In fact, that his evidence was extremely evasive. In her closing submissions to the Tribunal, Ms Grinberg contended that at times during Mr Anees’ oral evidence he would be very detailed in his recollection of events, but at other times he would, in effect, shut down and not be able to answer questions. For example, in relation to the 13 counts of obtain property by deception of credit cards which Mr Anees was convicted of on 17 August 2011, the Respondent pointed to the fact that Mr Anees was able to recall the events from the night before the offences occurred and who he was with. However, he was unable to recall the details of the credit card transactions, or the means in which he utilised the cards. Ms Grinberg further noted the gaping hole in Mr Anees’ memory. Therefore, the Respondent has submitted that Mr Anees’ selective memory should be of real concern as far as his credibility is concerned.

13. It is submitted that I should consider that there was much more he could explain but that he failed to do so. In her closing submissions, Ms Grinberg contended that the Tribunal was left none the wiser as to what actually occurred in relation to Mr Anees’ offending,

14. Moreover, the Respondent submitted that I should take into account the fact that Mr Anees had sat through the evidence of the other witnesses (character witnesses) given earlier in the day.

15. The Respondent further submitted that I should view Mr Anees’ offences as they stand without in effect going behind the record. Those offences included theft and use of a weapon, as well as three incidents of violence.

16. Finally, the Respondent submitted that I should not view favourably the absence of Ms Crouch, both in attendance at the hearing and in the lodgement of supporting documents with the Tribunal. There is no medical evidence to explain her absence, nor is there an up to date statement (or statutory declaration) from her in relation to her relationship with Mr Anees. Further on this point, Ms Grinberg contended that there is a gap in evidence in the state of the relationship between Ms Crouch and Mr Anees, as well as on the effect a decision to affirm the decision under review would have on her. The Respondent submitted that in light of this, in considering the impact on family members, the Tribunal should not give that criterion any weight. It was contended that there simply was not enough current evidence for the Tribunal to make a finding as to what effect a refusal of Mr Anees’ visa would have on Ms Crouch.

17. On this last point the Applicant submits that no adverse inference should be drawn from the absence of Ms Crouch. In relation to this point, Ms Kelly submitted that a forensic decision was made on behalf of the Applicant to exclude Ms Crouch from involvement with the proceedings, for the protection of her mental health. I should say I am not quite clear about all that was intended by the word forensic. But in addition to this, Mr Anees stated in his oral evidence that he categorically did not want his partner in the hearing room or involved with proceedings. He stated that he would not risk her health or her life. The Tribunal heard evidence that Ms Crouch was safe at home during the hearing.

    Outlines of evidence and observations

18. At the hearing Ms Kelly called these persons in the following order to give evidence: Dr Eric Salter; Mr Alexander Hipwell; Dr Barber Peters; Mr Steven Palfreyman; and finally, Mr Anees himself. Ms Grinberg of Counsel called no witnesses but cross-examined each of those called by the Applicant, including Mr Anees.

19. It was correct of Ms Kelly to point out to the Tribunal various positive elements in the Applicant’s life to this point. They include various matters mentioned by her in the course of her submissions, which I have referred to above.

20. In particular, I should wish to mention a certain community-mindedness which I think has been evident on the part of the Applicant on many occasions. I refer to his educational achievements, both in Australia and in Pakistan, as well as to his volunteering efforts in the 2009 Black Saturday bushfires where it appears he worked over a whole weekend on a telethon effort to raise funds. Earlier, in Pakistan following an earthquake in 2005, he had volunteered at a field hospital helping comfort patients.

21. This is not to mention the various kindnesses I was told he has shown Ms Crouch over the years in the course of their relationship which cannot have been easy given her reported conditions. Nor is it to mention his development of a course on debt management while in detention or his organising a cricket team and coaching for detainees. I note also that the Applicant had been captain of the soccer team in the course of his studies at Deakin University.

22. By selecting these few aspects of Mr Anees’ achievements, I should not wish to be taken as intending to limit Counsel’s submissions in this regard, for it is obvious that many good things may be said about him both presently and in the past. In particular, it is noteworthy that his employer has a high opinion of him and has kept his job open for him.

23. Indeed, many favourable things have been said about Mr Anees in the character references lodged with the Tribunal and by the witnesses called on his behalf. However, it was correctly pointed out to me by Ms Grinberg, that I should have certain reservations or misgivings about the evidence of those witnesses.

    Dr Eric Salter, general practitioner

24. The evidence on oath of Dr Salter, the Applicant’s medical practitioner, was very helpful in a number of respects. He informed the Tribunal that the Applicant is a very excitable individual who has been treated for depression and obsessive compulsive disorder. In relation to Mr Anees’ obsessive compulsive disorder, Dr Salter informed the Tribunal that Mr Anees obsesses over small matters and fixates on things that can be far less important in the grand scheme of things. He further stated that in his opinion, Mr Anees was suffering from workplace bullying and found it difficult to achieve many activities of daily living.

25. In his view, the Applicant’s offending referred to above occurred in a period of deep conflict in his life. In his written report dated 5 December 2016, which he confirmed he stood by, Dr Salter referred to this period as a dark time in his life. In relation to Mr Anees’ temperament, he stated that when you meet him and get to know him as I have, you see an individual who is very caring and warm and someone who would rather help others sometimes to the detriment of his own health and wellbeing. Further, Dr Salter noted that I am very confident that [he] does not represent any threat to our way of life nor any risk of reoffending. In his oral evidence, Dr Salter stated that he believed that Mr Anees was now equipped with resources to better deal with problems in the future: namely, a psychiatrist, psychologist and medications. He further stated that Mr Anees understands the importance of keeping up with his medications and having ongoing care.

26. I should note that although he was of the above opinion, no formal re-assessments of Mr Anees’ risk of re-offending were conducted by Dr Salter or by any other medical professional.

27. When questioned in relation to the assault with weapon and recklessly causing serious injury offences, Dr Salter responded that Mr Anees now has much greater insight into his own mental illness and that is it very unlikely that he would again find himself in the context in which these offences occurred. However, he was unaware that the victim of the assault at the cinemas on 22 August 2010 was a woman. He stated that this fact did not change his view, as females fight quite violently. Nonetheless, it is clear that Dr Salter was not aware of any of Mr Anees’ offences in detail.

28. I should also note that during the hearing, Dr Salter seemed to speak of Ms Crouch in the past tense, although it was not clear what the reason for this was or whether it was simply a linguistic oversight I am not in a position to take this particular matter further, and accordingly I give it no weight.

29. Although it was clear that Dr Salter cares about the Applicant’s wellbeing, in reality Mr Anees has only been a patient at the Millennium Medical Centre Footscray clinic since 30 October 2013 and was first seen by Dr Salter on 11 June 2014. In his oral evidence, Dr Salter stated that he had seen Mr Anees approximately 30 to 40 times between 2014 and 2015. Although there have been a large number of consultations between them since 2013, I consider that the time over which Dr Salter has formulated his more generalised views about the Applicant and the Australian community is extraordinarily short. Furthermore, although Dr Salter stated that in the course of treating a patient’s mental illness, it is difficult not to form a personal opinion of their character, I consider that this opinion is entirely the product of a medical environment. That is to say, it is of value in a medical context only. To that extent, I consider I should place a question mark over that aspect of his character evidence.

    Mr Alexander Hipwell

30. Mr Hipwell gave evidence on affirmation and provided the Tribunal with two letters in support. In the second of these letters dated 28 November 2016 Mr Hipwell says that the Applicant is one of the kindest and most compassionate people I know and a good, respectable person who only wants to look after fellow human beings, is not judgemental [and is] a very progressive and fair-minded person. He says in that letter that [v]iolence is not within [the Applicant’s] nature, he is a pacifist, and through all the years I have known him I have never seen him angry at another person, he is always the one laughing and making jokes because he enjoys making people feel good and happy. He says [t]here is support everywhere for [the Applicant] within the community ,and not just from friends He concludes that If [I] could give up my own citizenship and give it to [him] I would.

31. This letter of support speaks fulsomely, and very favourably of the Applicant and perhaps a little exaggeratedly, but I would be inclined to place great reliance upon it (and upon the other letter dated 13 June 2016) were it not for the other evidence given by Mr Hipwell.

32. Mr Hipwell and the Applicant came to know one another in 2009, through it seems their studies at Deakin University. Although Mr Hipwell has lived internationally over the past two years, he stated in his oral evidence that he and Mr Anees catch up whenever [they] can. They have also socialised and played soccer together through Deakin University.

33. During the hearing, Mr Hipwell gave evidence of his organisation and development of a crowdfunded project website, Pozible, for Mr Anees. Mr Hipwell spoke of a campaign launched for the Applicant’s legal fees on the basis that he is wrongfully held in immigration detention. Some $6110 has been raised. However, the website makes no reference to the Applicant’s criminal history. Therefore, it is reasonable to infer that the exclusion of Mr Anees’ criminal history on the website has led to some members of the public contributing funds on the basis that they are, to some extent, being fooled or misled. Furthermore, it is reasonable to infer that this omission was done knowingly and deliberately by Mr Hipwell, so as to likely increase the amount of funds which were able to be raised.

34. Moreover, it appears that Mr Hipwell omitted the Applicant’s criminal history from the Pozible website despite admitting to having some awareness of the Applicant’s criminal record at least as far as credit card offences are concerned. In relation to the credit card offences, Mr Hipwell stated that he was aware of the 13 counts of obtaining property by deception, but was unaware of the actual amounts involved or what credit cards were used. He also had to acknowledge that there are posts written on the website by Mr Hipwell as if written by the Applicant, which when questioned about, Mr Anees stated he knew nothing about. Overall, in relation to the convictions dating up to 2013, Mr Hipwell stated that he had been told some of these stories but acknowledged that he didn’t know about all the stories at the time. In giving his reasons for not being fully aware of the nature of Mr Anees’ convictions, Mr Hipwell explained that he thought it was because the Applicant was embarrassed and that they together in any event only spoke about superficial things. 

35. Taking the above into account, there seems to be in this quite some unethical dealing on the part of Mr Hipwell. And that is not even to mention the evidence given to me that, of the funds raised, only about $2000 has found its way into the Applicant’s bank account. This seems to raise some serious questions about the conduct of Mr Hipwell, such that I should view his evidence as the evidence of a witness of dubious integrity or honesty.

36. Hence, I should view with great suspicion statements by Mr Hipwell to the effect that violence is not within [the Applicant’s] nature and that I know that deep down he would not want to hurt anyone. Mr Hipwell is the originator of the campaign to liberate the Applicant from detention and is prepared to adopt dubious means to achieve his end. He has good reason to make statements like that to further the end of securing the Applicant’s release.

37. This means I consider I should view the evidence of Mr Hipwell in its entirety in the same light. Accordingly, I find his evidence to the Tribunal unhelpful. I regard him as apt to be dishonest or deceitful.

    Dr Barber Peters

38. Dr Peters gave evidence on oath affirming a letter of reference dated 3 November 2016. In that letter, he said he has known the Applicant all his life. There is another letter dated 21 November 2016. On 13 December 2016 Dr Peters confirmed that at the time of writing his reference he was aware of the Applicant’s criminal history and he said he was still happy to recommend [him as an] honest and reliable person. He also said he knows the Applicant’s father who he said is upper middle class in Pakistan and owner of a very valuable estate or property in Lahore.

39. In his oral evidence, Dr Peters stated that Mr Anees had been faithful to his partner and looks after her. He emphasised that Mr Anees had stayed true to her, knowing that he is young and could find someone else.

40. Further, though a very important point I consider was made by Dr Peters in his evidence when he stated that  the Applicant now has certainly dissociated himself from certain kinds of people [and] does not go anywhere where he can get into trouble. He also stated that carrying a weapon is common in Pakistan where violence is a way of life.

1. In his evidence, the Applicant took exception to Dr Peters’ evidence that he had in the past associated with the wrong types of people. He said Dr Peters did not or could not be expected to know of this. This, as I recall was the only exception the Applicant took to Dr Peters evidence. I consider that significant.

2. I, however, generally found Dr Peters’ evidence helpful and informative and I accept it. He appeared to be an honest and truthful witness.

3. Accepting his evidence as I do though, makes it difficult for me to accept that the only motivation for Mr Anees criminal wrongdoing has been his unqualified love for Ms Crouch. In fact, I am satisfied on the basis of Dr Peters’ evidence, he having known the Applicant all his life and not merely recently, that the Applicant’s criminal wrongdoing is also to be explained by him having associated with the wrong company. Dr Peters told the Tribunal that the Applicant had associated with a certain kind of people up until prison. He stated that he believes Mr Anees became aware of the fact that these people were not his true friends when no one visited him in prison.

   Mr Steve Palfreyman

4. Mr Palfreyman gave affirmed evidence that he was aware of the Applicant’s criminal history. He said he has been through the Applicant’s past in detail. In his view, he said the Applicant had changed a lot. He said he had been with the Applicant at the detention centre on one occasion for about three hours and had otherwise spoken to him on the phone on a few occasions. He, like Mr Hipwell spoke of a campaign to see the Applicant freed from detention. Mr Palfreyman stated that he stands by Mr Anees because Mr Hipwell (whom he lives with I believe) stands by him. That in itself he said helps me to decide that this is the right thing to do. He said he does not think it fair for the Applicant to be confronting the situation he faces. He indicated that he and the Applicant have in common a love of people. He did not refer to anything more specific than that which was a little surprising.

5. There is an undated letter of support on file with the Tribunal affirmed by Mr Palfreyman in evidence in which he speaks glowingly of the Applicant, who he says he met many years ago. He says the Applicant has made so many gestures towards his community and those close to him that would not be expected of the average Australian. He says had the Applicant taken any actions that I felt were concerning or not in line with our values as Australians, I would not be writing this letter. He says the Applicant, in being in detention, is living in one of the harshest environments someone can face in the modern world. He says we could all learn a lot from [the Applicant’s] commitment to bettering himself, to helping those closest to him first and foremost and to helping the wider community whenever he has the opportunity to do so.

6. I must indicate I do not place great emphasis on the evidence given by Mr Palfreyman. I do not regard him as being in a position to say he has known the Applicant over many years. That is plainly false. He has known him only a short while and has only ever visited him in detention on one occasion. Apart from that he has only ever had telephone contact with him. When asked what he and the Applicant share in common all he could say was a love of people. This was an unhelpful answer and indicated to me that there really is nothing in common between him and the Applicant. Indeed, his views of the Applicant seem largely to be based on what Mr Hipwell thinks of the Applicant. In other words, Mr Palfreyman has nothing to offer the Tribunal by way of independent or objective evidence. I regard his evidence as of no assistance. I do note though that at no point does he specifically mention Ms Crouch by name.

   Mr Nauroze Anees

7. The Applicant gave affirmed evidence on his own behalf. He affirmed the contents of the Statements he has submitted to the Tribunal.

8. When asked why Ms Crouch was not at the Tribunal to support him he said I categorically want her not to be part of this process. This seemed very odd to me, in considering the evidence that she might be likely to give and raises doubts in my mind as to the current relationship status of Ms Crouch and the Applicant.  Mr Anees stated that he would not want to risk Ms Crouch’s health by attending.

9. However. Ms Crouch is the very person he says he supported and he says is the reason why he incurred criminal penalties (including jail), yet she was now not to be seen. Rather, Mr Anees told the Tribunal that Ms Crouch was safe at home during the hearing. However, no medical certificate was produced to show any degree of ill health on her part. Nor was there any statement or certificate from her mother. I must make it clear that I view her absence as significant. She would be an important person to call. I am of the opinion that Ms Kelly found it difficult to explain her absence by any reason of a substantial character.

10. Mr Anees indicated that he had received a wage from his employer of about $1400 per fortnight which had been paid to him a couple of times. In regards to the campaign for Mr Anees’ legal costs to get him released, he agreed he had received only $2000 in the last two months or so but expressed no interest in finding out what had happened to the rest of the money. This also seemed odd to me. For surely he would have an interest in knowing where the remaining funds were. They were raised solely for his benefit after all.

11. Also peculiar was the picture on the Free Nauroze Pozible website of him wearing boxing gloves alongside a punching bag making it appear as if he was just working out on a boxing routine. It was admitted to me by him that that was entirely staged. Why it was staged I am unable to say. But it gives a false impression of someone doing boxing. Why boxing was chosen to be staged is unexplained.

12. In relation to his criminal record as set out above, the Applicant stated that [he] take[s] 100% responsibility for his actions. This did not appear to be in reality so. One of the charges he indicated he pleaded guilty to was on lawyer’s advice whereas he felt he should have pleaded not guilty. So my question is: why take full responsibility for something for which you do not think you are not responsible? In other words the Applicant saying he takes 100% responsibility for his criminal conduct is actually illusory. In fact, he does not do so even though he says he does. His statement therefore that he takes 100% responsibility for all his actions also gives rise to a false impression. It misleads. And by saying it he seeks to mislead or deceive the Tribunal in my view.

13. This raises another unsatisfactory aspect of his evidence. On many occasions when asked to give details of the offences he has been convicted of, he would say he could not remember. Yet I do not accept that this is so. He has a very detailed recollection of the events occurring between he and Ms Crouch that lead to his criminal activity and can even remember why he stole specific items such as Prada sunglasses and perfume for Ms Crouch. He can even remember the name of the lawyer who advised him on the question of pleading guilty several years ago. He said even that he could not remember the injury he caused when pleading guilty to recklessly causing injury. I simply do not believe him on this. I am assisted by Ms Kelly, his Counsel, in ascertaining that it was apparently a sizeable lump on a female victim’s forehead.

14. Of particular concern is that the Applicant says he cannot remember details of the 13 charges relating to the use of credit cards.  I find this quite impossible to accept. On 13 separate occasions he falsely used a credit card yet says he cannot recall how he did this and cannot recall how he came into possession of the cards. Yet there must have been quite a deal of thought and planning which went into the commission of the offences: planning and resourcefulness. What the Applicant did was deceitful, organised and devious.

15. The Applicant can remember the type of knife he was carrying on one or more occasions to be a small penknife maybe 15 cm in length. When pressed, Mr Anees indicated that on other occasions he had been carrying a much larger weapon, that being a kitchen knife. Even threatening someone with a penknife would be terrifying. In his evidence, when asked about this, Mr Palfreyman sought to minimize the Applicant’s conduct by explaining that he believed it would have been an empty threat. This indicated to me how much lacking in objectivity Mr Palfreyman was when he gave his evidence.

16. The Applicant in evidence expressed remorse about his crimes but did not seem to be visibly affected to any great extent by having a record of violence and dishonesty to his name. Nor did he say very much at all about those he had threatened with a knife. Furthermore, as I have articulated, Mr Anees left a sizeable lump on a female victim’s forehead following his recklessly causing injury offence. I would have thought he would think it important to express concern over the welfare of all victims. But that does not seem to be currently an issue for him.

17. He indicated that he has now learned from his experiences and pointed out he has not even had a parking ticket since his last encounter with the police. He said he is even careful to avoid walking against Don’t Walk signs.

    PRIMARY CONSIDERATIONS

18. The central issue for the Tribunal is to determine whether or not the Applicant satisfies the character test referred to in section 501(1) of the Act.

19. In accordance with section 501(6)(d) of the Act,  the Tribunal must determine if there is a risk that the Applicant, if allowed to remain in Australia, would engage in criminal conduct in Australia.

    Protection of the Australian Community

20. In turn, in determining this issue the Tribunal must have regard to certain primary considerations set out in paragraph 11(1) of the Direction. In this matter, the primary considerations in paragraph 11(1)(a) and (c) arise: that is to say, protection of the Australian community from criminal and other serious conduct; and expectations of the Australian community. The primary consideration in paragraph 11(1)(b), addressing the best interests of minor children in Australia does not arise.

21. I have carefully considered the evidence in this matter. Having done so, I am quite satisfied that the Applicant does not satisfy the character test.

22. I am satisfied the Applicant does not satisfy the character test based on the primary considerations in paragraphs 11(1)(a) and 11(1)(b) of the Direction, which is to say in considering the protection of the Australian community from criminal and other serious conduct and considering expectations of the Australian community, I am satisfied the Applicant fails the character test.  I am satisfied also that any remaining discretion open to the Tribunal should not be exercised in his favour.

    The nature and seriousness of the conduct

23. It is true that the Applicant’s record of criminal offending occurs during a relatively confined period of approximately three years. However, during that period the Applicant committed some 30 offences. In considering paragraph 11.1.1(1)(f) of the Direction, the number of offences committed by Mr Anees during this period of time can adequately be described as being frequent. Moreover, as I have articulated above, the offences indicate an increasing trend of seriousness. The latest recorded convictions of Mr Anees include threat to inflict serious injury, theft and assault with a weapon. These are offences which are by no means trivial in nature , Moreover, a period of three years of offending may be a relatively confined period but it is certainly not, in my view, a brief period. In other words, I do not consider its magnitude is reduced by referring to the period as confined. Rather, the commission of 30 offences in a three year period easily justifies the Applicant’s record being described as substantial.

24. Furthermore, many of the offences Mr Anees has committed are very serious in nature particularly as they include offences against the person. As I have outlined above, these offences against the person include threat to inflict serious injury, assault with a weapon and recklessly cause injury. I also consider that clearly inherent in these offences is an element of violence against persons. Again, these are not minor or trivial crimes. They are serious crimes of a kind that cause community fear and alarm. In stating this, I take into consideration the principle set out in paragraph 11.1.1(1)(a) of the Direction, which states that violent crimes are viewed seriously.

25. In committing the assault with a weapon offence, Mr Anees’ weapon of choice was a knife. In his oral evidence, he stated that it was a pocket knife but admitted later it was a larger kitchen knife. It must have been exceedingly frightening for his victims to be faced by someone with a kitchen knife.   It is an event they will remember for a very long time.

26. Furthermore, it is important to note that Mr Anees was ready to use his fists. In the incident where he recklessly caused injury, for which he was convicted on 17 August 2011, he struck a woman to the head and she was left with swelling on her forehead. She may have been lucky she did not fall as a result. I note the photo I was shown during the hearing of Mr Anees in boxing gear, posing in front of a boxing bag, giving the impression that the Applicant is someone who practices boxing on occasion However, when asked about this photo Mr Anees told the Tribunal it was staged and he denies he ever did boxing. My observation, however, would be that Mr Anees did not look out of place posing with the boxing bag in boxing gear and he appears in the photo to have upper body strength.

27. Although, as I have described above, Mr Anees experienced significant hardship in alien circumstances for a period of approximately three years, Mr Anees’ other offences of theft and deception demonstrate that he was prepared to steal his way in order to make ends meet. Moreover, the credit card deceptions are illustrative of behaviour which is cunning and involves planning. Indeed, the level of planning required for these kinds of offences shows a high level of deviousness on his part.

28. Moreover, Mr Anees’ other offences include failing to answer bail on four occasions. These plainly show a complete disregard of legal duties and obligations and for court rulings.

29. Ms Kelly for the Applicant submitted that I should see a number of Mr Anees’ offences as opportunistic and survivalist. I agree they are opportunistic in the sense that they were committed because the opportunity arose. The Applicant took advantage of the opportunity on each occasion. But to describe them at all as survivalist raises other considerations.

30. My understanding is that this refers to the point I was told, namely, that the Applicant committed the offences or many of them out of a sense of devotion to Ms Crouch or for her protection or for their survival together as a couple, particularly when homeless or living on the street.  It is said that Ms Crouch became the main focus of Mr Anees’ life. In his words, he fell head over heels in love with her. This does not, in my opinion, excuse criminal conduct even though the situation may have been desperate.  If it is true, it may explain why certain of the offences occurred, but that is all.  It could not, for instance, explain why the Applicant chose to seize his prescription drugs from the pharmacist without paying for them and then run out of the shop. Nor could it possibly explain stealing perfume or stealing Prada sunglasses.  It may have been very nice of Mr Anees to provide Ms Crouch with these items. They were living on the streets. However, living on the streets provides no excuse for the criminal conduct involved in stealing them. They are luxury items and not items of necessity.

31. In my view, this analysis I am asked to take of the Applicant’s criminal wrongdoing seems incorrect all round. I have previously expressed my misgivings about this account of his wrongdoing. Indeed, I am inclined to regard the Applicant’s characterisation of his feelings towards Ms Crouch as exaggerated, at least in so far as it is suggested his feelings continue to the present day at the same level of intensity.

32. In that regard, I consider it significant that Ms Crouch did not attend the hearing and no witness statement or recent letter of support from her was put into evidence. This seemed to me to be very odd. The Applicant said he expressly told her he did not want her to be participating in the proceedings on account of health issues or concerns but this in itself seemed odd. Nor was any medical documentation on the current state of her health produced. And no one else such as her mother provided any documentation to the Tribunal to explain Ms Crouch’s position.

33. I would have thought it would be important for the Applicant to have Ms Crouch in attendance. She is the other half of the spousal relationship, yet she was nowhere to be seen. This means that the only substantial details about their relationship I have is from the Applicant together with some general observations by Dr Peters. But the evidence cannot be verified by her because she is not available in any way, shape or form. The last she was heard from in this matter was in April 2015.

34. Also, had Ms Crouch been able to give evidence, she could have explained possibly the circumstances which led to the various offences, including the one which took place after watching the film Salt. She could have said whether she felt threatened or whether she needed the Applicant’s intervention. I note that she too faced a charge or charges out of the incident. She would be in a good position to tell the Tribunal exactly what happened.

35. Indeed, I must indicate in view of this that the point made by Dr Peters in his evidence seems to take on new light. He indicated that the Applicant had got into trouble because he had been associating with the wrong types of people. He was keeping bad company. This does not seem to have anything to do with Ms Crouch at all. More seriously, it suggests that Ms Crouch was not in the picture at all, or perhaps even was never in the picture from the beginning. If so there were other motivating forces at work that caused the Applicant’s criminal conduct. This if so could help to explain why in reality Ms Crouch was not at the Tribunal. But it is unnecessary to speculate.

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

36. The Applicant stated in the witness box that he has now learned his lesson and from this I expect I am asked to accept that he is no longer any risk to the Australian community. I am not, however, prepared to accept that this is so, or that he has learned his lesson.

37. In my view, Mr Anees stated he has learned his lesson only for convenience, because it suits him on this occasion to say it so that he improves his chances of staying in Australia.

38. However, I do not regard the Applicant as a witness of truth. In my view the Applicant is still prepared to lie and to act dishonestly. I leave to one side whether he was lying to the Tribunal about instructing Ms Crouch not to attend the hearing. But it seems plain to me that he was dishonest when he said he could not remember details of offences he was asked about. Mr Anees may have been covering up for others, or he may have been embarrassed, but I am satisfied he was not telling the truth in this regard. The offences are all relatively recent, some more recent than others, and I could see no reason why he should say he could not remember the details of the ones he was asked about. I am satisfied he does remember their details, particularly those involving the stolen credit cards. However, for some reason or other he was not prepared to admit it. Equally, I am satisfied that he was trying to mislead or  deceive the Tribunal as I have indicated above by saying he accepted 100% responsibility for his actions, even though secretly he does not believe he should have pleaded guilty to one of the offences.

1. This means that Mr Anees was not prepared to co-operate with the Tribunal in arriving at the truth and I view this very seriously. I observed him closely. He was prepared to lie, to say he could not remember, when I am satisfied he did know. He also was prepared to mislead or deceive the Tribunal into believing he is totally remorseful when he is not. But this may not be a concern to him given his history of answering to bail. Members of the Australian community expect better than this.

2. My view therefore is that on the whole I cannot accept the Applicant as a witness of truth. He is one who is prepared to lie, mislead and deceive.

3. I should also note that these were the same characteristics he showed when he committed several of his offences, especially those concerning the credit cards. Therefore, in my view he has not changed this aspect of his life at all and the risks of him returning to his old ways are all too apparent.

4. I therefore cannot be satisfied that I can rely on his evidence to find that that he has indeed learned his lesson or that he is a changed man.

5. In considering paragraph 11.1.2(1) of the Direction, I should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. As I have elucidated above, I consider Mr Anees’ offences to be serious in nature. In particular, I consider that Mr Anees’ most recent offences of threat to inflict serious injury, theft and assault with a weapon to attract a low level of tolerance from the Australian community.

6. That is not to say that there are not good things to say about the Applicant both in Australia and when he was in Pakistan.  As Counsel submitted, there clearly are. But it is to say that the Applicant has a substantial record of criminal offending, as set out above and I am not satisfied that there is no risk of his re-offending again. When such a risk exists the expectation of the Australian community is clearly to the effect he should not be allowed to stay in Australia.

7. I realise that Mr Anees’ character witnesses spoke highly of him.

8. Those who were not called to give evidence have not been able to be tested in cross-examination. The views they express are therefore subject to this impediment.

9. Those of his character witnesses who did give evidence, apart from Dr Peters and perhaps Dr Salter, did him no service at all. But as regards Dr Salter, as I have discussed above, no formal re-assessments of Mr Anees’ risk of re-offending were conducted by him on Mr Anees.  So there is no up to date medical assessment of Mr Anees I can rely upon. Certainly there is no report from a psychiatrist. Hence, in considering paragraph 11.1.2(3)(b)(i) of the Direction, I conclude that there is quite clearly insufficient information and evidence from independent and authoritative sources on the prospect of Mr Anees re-offending, In my view there is a strong risk of him doing so.

10. For the reasons I have already given, Mr Hipwell, who initiated the campaign to free the Applicant, is I consider apt to be dishonest or deceitful. His evidence is therefore unhelpful. For the other reasons I have already given, I regard the evidence of Mr Palfreyman as of no assistance to me also. Given Mr Anees history of violence, I reject their views of him as being not of a violent nature. The evidence they gave on this point seems absurd and ill -informed or intended to create a false impression to help him succeed.

11. The evidence of none of these persons satisfied me that the Applicant is not still at risk of re-offending and I note in that regard that Dr Salter said in evidence that Mr Anees is excitable and develops fixations.

    Expectations of the Australian Community

12. Similarly, the evidence of none of these persons satisfied me that Mr Anees is someone who suits or fits in with Australian community expectations. I consider that in accordance with paragraph 11.3(1) of the Direction that a visa refusal is appropriate as the nature of the offences, being of a serious and violent nature, are such that the Australian community would expect that Mr Anees should not be granted a visa.

13. For it is my view that the Australian community plainly would not welcome into Australia someone who in the recent past has used violence to achieve his own ends and is at risk of re-offending in the same serious way again.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

14. I cannot see how in any way at all the situation of the Applicant engages the considerations listed in paragraph 12.1 of the Direction. I consider it was but faintly argued that should the Applicant’s visa be refused he would be returned to Pakistan where he could experience inferior mental health services and religious difficulties. I was not addressed on these issues, with the Applicant not being a refugee, but materials were lodged with the Tribunal which I have outlined above. However, those materials were vague, generalised and unpersuasive.

    Impact on family members

15. I do not view favourably the absence of Ms Crouch, both in attendance at the hearing and in the lodgement of supporting documents to the Tribunal. As I have described above, no medical evidence was lodged with the Tribunal to explain her absence. In addition, there was a noticeable gap in evidence in the form of a statutory declaration from Ms Crouch with regards to the current status of her relationship with Mr Anees.  There was also a lack of evidence as to the impact or effect a decision to affirm the decision under review would have on Ms Crouch.

16. Therefore, in applying paragraph 12.2(1) of the Direction, I do not give this consideration any weight.

    Impact on victims

17. In considering paragraph 12.3(1) of the Direction, I note that there was no evidence before the Tribunal with regards to victim impact statements made in relation to Mr Anees’ various crimes. I reiterate, however, that in relation to the assault with a weapon offence, it must have been exceedingly frightening for Mr Anees’ victim or victims to be faced by someone with a knife, and was an event not likely to be forgotten very soon.

    CONCLUSION

18. I have formed the view I have said for the reasons I have given, that there is a real risk of the Applicant re-offending. That is to say that if he remains in Australia there is a real risk of him engaging in criminal activity.

19. This means, as I have said that he has failed the character test. If there is room for a discretion at this point I choose to exercise it against the Applicant for the very reason of his real risk of re offending.

20. The reviewable decision is affirmed.

133.    I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

[sgd].................................................

Associate

Dated             23 December 2016

Date of hearing

16 December 2016

Advocate for the Applicant

Ms Jessica Williamson and Mr Andrew Black

Solicitors for the Applicant

Counsel for the Applicant

WLW Migration Lawyers

Ms Siobhan Kelly

Advocate for the Respondent

Mr Oliver Young

Solicitors for the Respondent

Counsel for the Respondent

Sparke Helmore

Ms Krystyna Grinberg