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

Barghachoun and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2492 (8 August 2022)
Division:GENERAL DIVISION
File Number:2022/4150
Re:Imad Abdulkades Barghachoun
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:08 August 2022
Place:Adelaide

The decision under review is affirmed.
........................[sgnd]............................................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class BF Transitional (permanent) visa (“his visa”) under section 501 (3A) where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
MIEA V Singh (1997) FCR 288
Minister for Home Affairs v Omar (2019) FCAFC 188
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
08 August 2022
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 12 May 2022, not to revoke the mandatory cancellation of his visa.
The Applicant’s visa was cancelled on 25 October 2016 under section 501 (3A) on the basis that he did not pass the character test.[1]
[1] Exhibit 4, G32, Attachment R, pp 261-267.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of a conviction on 13 December 2012, in the District Court of NSW. He was initially sentenced to eight and a half years imprisonment. He was to be eligible for parole on 19 February 2019.[2] He appealed the severity of the sentence. The NSW Court of Criminal Appeal reduced the sentence to 6 years imprisonment. (20 August 2013 until 19 August 2019). This made him eligible for parole on 20 February 2017.[3] The Applicant has been in Immigration Detention since that time. This is not the Applicant’s only sentence of imprisonment.[4]
[2] Ibid, G3, Attachment A, p 77 & G10, Attachment C, p 165.
[3] Ibid, G3, Attachment A, pp 76-77 & G9, Attachment B, 153.
[4] See “Attachment A” National Police Certificate (24 October 2016), pp 76-80, “Attachment B”, pp 81-91, Australian Criminal Intelligence Commission Reports (1 June 2020) and (6 October 2021).
In response to a direction by the Tribunal, the parties have submitted an agreed “Table of terms of imprisonment, parole and immigration detention”. A copy of this is attached and marked “Annexure B”. As can be seen from this table, due to the Applicant’s extensive criminal record, he has been imprisoned on various occasions since March of 1989.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 25 and 26 July 2022. The Applicant was represented by Dr Jason Donnelly of Latham Chambers and the Respondent was represented by Mr Jonathon Hutton of Australian Government Solicitor.
The Applicant gave evidence by video link from Yongola detention centre in Western Australia. Technical problems necessitated part of his evidence being taken by phone and the interposition of other witnesses part way through his cross-examination. This was less than ideal, but it was the only realistic option, given the time constraints in this matter.
The Applicant was an unimpressive witness. He frequently had either had a poor recollection of events or gave answers that were non-responsive to questions. In many instances he offered repetitive pleas in his cause, rather than providing a relevant response. He engaged in hyperbole. There were several instances where his evidence was either inconsistent with his previous statements, or inexplicable, or unbelievable. I will provide some examples in due course. I note the Applicant’s evidence that he will not be returning to Lebanon under any circumstances. He said that he has given it no consideration. He said “I will not go to Lebanon. It is not an option.” He also said “I will do whatever I have to do” to avoid returning to Lebanon. This statement was undoubtedly truthful. It is a plausible explanation for much of the self-serving, or inconsistent evidence before the Tribunal. Although he equivocated somewhat when directly asked in cross examination, he would, in my view, if unsuccessful in these proceedings, be likely to seek a protection visa.
When pressed in cross-examination about whether he would seek out safer areas in Lebanon if he were returned, he said that he “would not seek out safer areas.. I don’t trust them.. I don’t trust their way of life.”
I have little confidence in the Applicant’s veracity and generally prefer alternative sources where they are available. My view of the Applicant’s credibility is important in assessing, inter alia, his repeated statements to the Tribunal, that he is now, at 52 years of age, due to having been in immigration detention for some years, “a different person.” It is also relevant to forming a view as to the reliability of his evidence regarding his connection to various minor children.
The Applicant called three witnesses.
Child A is his 17-year-old daughter. She presented in a straightforward manner. Her evidence was given in a way totally consistent with her age and her natural concern for her biological father. Her evidence was really focused on her level of attachment to her father. It is important perhaps to note that she only lived with her father until she was about 2 years of age. She understandably has virtually no recollection of this period. Her parents split up. She has since lived with her mother and her maternal grandmother. Until he entered Immigration detention, Child A was told that her father was working overseas. This was done to shield her from any contact with the prison system. There was not much contact during this period. Since the Applicant has been in Immigration Detention, she has visited him and been in contact electronically. She describes their relationship as close and says that he is her “best friend”. She said that she communicates with him by “face-time” most days now. She would like to see him as much as possible. If he were removed, it would be “depressing”. She would not be able to travel to Lebanon to see him because her mother would not let her. It would be “unsafe”. She has met the Applicant’s current partner “a few times” and thought that she has two children. She could not recall her name. It was clear that Child A knew very little about the Applicant’s current partner, or details about his criminal history.
The Applicant’s former wife, Nasrien Amer, Child A’s mother, also gave evidence. She met the Applicant in about 2001. They met when her brother was in prison with the Applicant. She met him when visiting her brother. In about October 2002 she married the Applicant. She was 5 months pregnant at the time but lost the baby. This was an Islamic religious marriage. Interestingly, she was unable to recall the date. They bought a house next to the Applicant’s parents. Child A was born on 20 April 2005. They separated in 2007. She said in her statement of 4 October 2017[5] that this was due to the Applicant’s drug taking.[6] In her oral evidence she said that she could not recall why they split, or when. He says it was because she “lost the plot when her brother was killed”. This is but one of several examples of the Applicant deflecting responsibility to other people or events, rather than accepting responsibility for himself. This is despite him frequently saying that he “only had himself to blame”. Ms Amer said that she had concerns for her daughter’s mental health if the Applicant were to be deported. She said that Child A had “been promised he’s coming home for so long”. This was apparently an expectation generated by the Applicant, after a successful conclusion to a recent matter in the Federal Court. She said that she would not allow Child A to travel to Lebanon if the Applicant were there, because it was not safe and that there were “people overseas that don’t’ like him (the Applicant).” She would not be drawn on who these people overseas may be and why they would not like the Applicant. I gained the strong impression that she was fearful about saying too much about this. I note that this issue has not been raised by the Applicant himself.
[5] Exhibit 4, G46, Attachment AC, p 309.
[6] Refer to Statement.
The Applicant also called his current partner, Ms Souraya Ramadan. The Applicant has known Ms Ramadan through family connections for many years. In 2020, Ms Ramadan was asked by the Applicant’s niece to assist the Applicant in her professional capacity as a migration agent. She continued in this capacity until November 2021, at which time she ceased to act and was replaced by Mr Issa, a lawyer. She gave two explanations for this. Firstly, the Applicant’s criminal history was so extensive that his case was complex beyond her level of competence. Secondly, she became personally connected with the Applicant to the extent that she felt that she was at risk of acting in an unprofessional manner, such that it may place her continuing capacity to act as a migration agent in jeopardy. Her evidence traversed the period from 2020 to the present. She went through an Islamic religious ceremony by zoom on 14 February 2022. Both she and the Applicant describe this as a “marriage”. She has only had electronic communication with the Applicant since 2020. She was very supportive of the Applicant. Overall, her evidence was more in the nature of advocacy on the Applicant’s behalf, than responding relevantly to questions. This is perhaps understandable given her background as a migration agent. She was clearly familiar with the considerations under Direction 90, particularly in regard to minor children. Many of her answers were prolix or tangential. I consider that her evidence needs to be treated with caution.
Various other statements in support of the Applicant were received as set out in Annexure A. Aside from the witnesses set out above, none of these were required for cross examination.
I note that the Applicant’s former partner Kylie Gunns and his biological son Bilal Gunns did not give evidence, nor did they provide any statement in support of the Applicant.
Background Facts
The Applicant was born on 11 March 1970. He is a citizen of Lebanon.
The Applicant came to Australia in 1983. He came here with his father, mother and three brothers.[7] They joined his three sisters who were already in Australia. His father died in 2015. His mother is in her late 80’s and is terminally ill, suffering from heart disease and dementia.[8]
[7] Exhibit 4, G59, Attachment AJ1, p 374.
[8] Ibid, G99, Attachment BD, p 768 & G108, Attachment BM, p 1052.
The Applicant spent 5 or 6 years at school in Lebanon. In Australia he attended Granville Boys High School leaving halfway through year 9.[9] He was badly behaved at school, getting into fights. He was suspended from school several times and was expelled when he was 14 years and 9 months old.[10] He did not tell his parents about this but commenced TAFE training as a mechanic. He did not complete his training due to incarceration for his criminal offending. He has since that time, whilst not incarcerated, had intermittent work. He has worked as a rigger, operating cranes, a truck driver and done other unskilled work.
[9] Exhibit 9, p 605.
[10] Exhibit 4, G91, Attachment AW2, p 730.
The Applicant has an extensive criminal history, commencing as a juvenile in 1986, 3 years after his arrival in Australia. Between 1988 and 1994, the Applicant was convicted of multiple offences including road traffic offences, driving whilst disqualified, driving an unregistered and uninsured vehicle, breaking and entering, negligent driving, resist arrest, assault police and receiving.[11] A copy of an the Applicant’s offending history is attached and marked “Annexure C”.[12]
[11] Ibid, G4, Attachment A1, pp 84-85.
[12] Ibid, G4, Attachment A1, pp 81-85 and G5, Attachment A2, pp 86-91. See also Exhibit 9, pp 1-41.
On 22 May 1988 the Applicant was convicted of stealing a welder.[13] The fact sheet dated 24 May 1988, states:
“At about 9.30pm 22.5.88 the defendant and co-offender (Bik TRAD) went to the Caltex Service Station, Fairfield Rd Wet Guildford. Both men then climbed onto the roof of the service station and the defendant removed several glass loovers from the windows with the assistance of the co-offender. He then lowered himself down into the main workshop area of the garage, where he removed a MigMate brand still on the roof, the two males then left the garage on foot carrying the welder in their hands. They walked across Fairfield road and were observed by a security guard who was making his rounds in guard then approached the two offenders, who were standing next to motor vehicle number JOM-878 owned by co-offender (TRAD). After being questioned by the security guard, the co-offender was grabbed by the security and the defendant left the scene in motor vehicle JOM-878. He later attended the Merrylands Police Station on Monday 23 May 1988.”[14]
[13] Ibid, p 567.
[14] Ibid.
On 24 September 1988, the Applicant stole a vehicle that was parked at the Apia Club.[15] On 26 September 1988, the victim, Mr Steven Apoifis made a statement, which stated:
“……
About 9:30pm on Sunday 24 September, 1988 I parked my vehicle in the carpark of the Apia Club at Leichhardt. I locked my vehicle, set the alarm and went into the club.
About 12.00am on Monday the 25 September, 1988 I left the Apia club and went to the carpark to go to my motor vehicle. I went to the car space where I have left my motor vehicle and it was not there.
About 12.30pm I attended Leichhardt Police Station and reported my car stolen. Whilst at the Police Station I was told something, and as a result of this I then attended Merrylands Police Station. I had then had a conversation with Constable A Merrylands Police Station.
About 1.15am I then went to the rear of the Police Station where I saw my car in the yard. I noticed that there was damage to the front pf the car and the front wheels were off. The interior of the car had been damaged, the dash had been damaged and also the steering column had been damaged. The Stereo system and the amplifier which was in the dash if the car was also missing.
When I left the car at the Apia Club there was no damage to the exterior or the interior of the car. When I first saw the car at Merrylands Police Station it was not in the same condition that I had left it at the Apia Club.
At no time did I give any person or persons permission to steal, take or use my motor vehicle. I estimate the damage to my car to be $600.00 and seek compensation for this amount. The value of my car is $6500.00
……”[16]
[15] Ibid, p 572.
[16] Ibid.
A pre-sentence report dated 20 March 1989 states:
“Mr Barghachoun seems sincere in wanting to stay out of trouble, but he will need to make a greater effort if he is to succeed. However, by virtue of his present conviction the offender is in breach of his recognizance of 4th July, 1988”.[17]
[17] Ibid, p 604.
Between 23 March 1989 and 1 November 1989, the Applicant served his first term of imprisonment.
NSW Probation Services records report the Applicant as saying that on 17 September 1992, he married his cousin.[18] They had been “sort of engaged” for the previous 6 years. His mother travelled to Lebanon in 1992 and brought his soon to be wife, to Australia.[19] This relationship did not last. She returned to Lebanon in 1994.[20] Interestingly, in his evidence, to the Tribunal, the Applicant denied that he married his cousin. He said that he did not recall anything about this entire episode involving his cousin. It is inexplicable that the Applicant should have now forgotten about his marriage. If he did not marry, it is inexplicable that he should have reported it to NSW corrections in 1994. I can see no reason why he would have lied about this in 1994. He offered no explanation. It also seems that at this time, he was in a relationship with Ms. Kylie Gunns from the beginning of 1993. Their son, Bilal was born on 29 January 1994. They apparently lived with his parents at their home. Again, this is curious to say the least, if he was married to his cousin at the same time.
[18] 30 September 1994 supra.
[19] Exhibit 9, filed 19 July 2022, p 605.
[20] Ibid, p 628.
A NSW Community Corrections service pre-sentence report dated 17 December 1992 states:
…….
Mr Barghachoun then had a patchy employment history. He has worked in several jobs (unskilled positions) coupled with period of unemployment.
After his release from prison in November 1989, Mr Barghachoun obtained work as a truck driver with a large juice company. He began on a casual basis until June 1990, when he bought a truck and worked on a contract basis. He later bought a second truck and employed a driver. In March, 1992, shortly before the commission for his current offences he was dismissed after an altercation with a supervisor.
At that stage he began sub-contracting his trucks to various courier companies. He now has tree trucks.
OFFENCE
In discussing the circumstances leading up to the offence Mr Barghachoun explained that on the morning prior to his dismissal he had an altercation with a person who would not move a truck which was blocking his exit. He stated that he was dismissed the following day without any opportunity to explain what had occurred.
He stated that he then devised a plan to ingratiate himself with his former employer. He said that he planned to steal a large quantity of juice and to hide it. He would approach his former employer saying that he know the whereabouts of the stolen juice.
ASSESSMENT
Mr Barghachoun presented as talkative and co-operative in interview. He also appeared as somewhat hyperactive with poor impulse control
Enterprising by nature, Mr Barghachoun would now seen to be developing his business acumen. He how has the added responsibility of his marriage, although in the extended family situation of his culture, he is still free to work seven days each week.
Mr Barghachoun appears sincere in his desire to stay out of trouble, but he will need to make a greater effort if he is succeed, as he still appears to lack insight.”[21]
[21] Ibid, p 606.
It is notable that this offending was premeditated.
On 8 March1993, the Applicant was convicted of assaulting police and resisting arrest. This was put to him in cross-examination. He did not recall the episode but did not deny assaulting police.[22]
[22] Exhibit 4, G4, Attachment A1, p 84.
On 1 June 1994 the Applicant was convicted of several counts of Social Security fraud. He explained that this was due to him continuing to claim job-start allowance for an employee who had left his employ. He presented this as an oversight rather than a plan to defraud the Commonwealth. Unfortunately, the Tribunal was not provided with any primary source material relating to this offending, so it is not possible to know the factual basis for these convictions. He was sentenced to 6 months imprisonment.[23]
[23] Ibid, p 90.

In 1994 he was still living with his then de facto partner Kylie Gunns[24] and their son Bilal,[25] at his parents’ home.[26] Bilal is now 28 years of age.
[24] Exhibit 9, filed 19 July 2022, p 49.
[25] Exhibit 4, G59, Attachment AJ1, p 379.
[26] Exhibit 9, filed 19 July 2022, p 608.
The Applicant remained in this de facto relationship until his incarceration, on 3 May 1994. His son was 3 months old at the time. The relationship did not survive this term of imprisonment, it ended in about 1999.[27] He remained in prison until 31 October 2002.
[27] Ibid, p 628.
The Applicant has had very little to do with his son. He has been either imprisoned or disengaged from his son for most of his life. As has already been noted, Bilal did not give evidence or even provide a statement of support of his father in these proceedings.
On 29 August 1994, the Applicant was involved in setting a man on fire.[28] A prison officer filed a New South Wales Police Report, which states:
“…….
About 9:25am today I was in the office in the cabinet making shop at Packles Prison. I noticed thick black smoke rising out of the lunchroom area. I then saw something moving which was engulfed in flames. At first glance I did not realise it was one of the inmates. There were a lot of inmates milling around. I then realised that it was one of the inmates. A number of inmates were distressed and several appeared to be running looking for a way to extinguish the fire. I then saw it was an inmate who was on fire from the waist down. The flames were in excess of one metre high. A number of inmates were attempting to douse the fire by using clothing and I believe that someone got some water and put out the fire.”[29]
[28] Ibid, p 261.
[29] Ibid.
This was put to the Applicant in cross-examination. He did not deny his involvement in this incident. A NSW Probation Service pre-sentence report dated 30 September 1994 says:
“          Mr. Barghachoun is a 25 year old man separated from his previous wife and now living with his de factor partner and their son at his parent’s home in Guildford. Prior to his incarceration he was self-employed as a subcontracting courier and earned $1500 nett per week.
PREVIOUS SUPERVISION
Mr Barghachoun was previously supervised by the Service during a two-year recognizance which he entered in 1998 until he was imprisoned in March, 1989, for a further offence.     He was also supervised when released to after-care probation in November, 1989, until the probation order expired in June, 1990.
He is currently being supervised on a three-year recognizance entered at Parramatta District Court on 17th December, 1992. Further offences led to his present prison term and other offences are before the court to-day.     All these offences are breaches of recognizance.
Notwithstanding the further offences, Mr Barghachoun has reported as direct.
FAMILY BACKGROUND
Mr. Barghachoun was born in Lebanon and is the youngest of six children.   The parents stated that the children were raised in a secure and financially stable family environment. At the age of fourteen his life was severely disrupted by the outbreak of civil war and the family fled to Australia leaving behind all their possessions.
Since migrating to Australia early in 1983, the offender and his parents have found it difficult to adjust to life in this country.    Mr Barghachoun’s father has been unable to work due to language difficulties and health problems.
Family relationships appear to be affectionate, strong and supportive.
On 17th September, 1992, Mr. Barghachoun married his cousin.    Mr. Barghachoun explained that his liason was arranged and his wife returned to Lebanon in January 1994.
Prior to his marriage Mr Barghachoun was keeping company with an Australian girlfriend who waited for him while he was with his wife and who conceived a child to him during 1993.     The child is now eight months old.
EDUCATION AND EMPLOYMENT
The offender sad he spent five or six years at school in Lebanon, leaving at the age of fourteen years. After arriving in Australia he attended Granville High School and left school halfway through Year Nine as he was not interested in learning and was often disruptive in class.
He states that he attended Granville Technical College for a year in a Motor Mechanic course and subsequently took up a two-year apprenticeship at a service station.     He abandoned his apprenticeship a year later as he could not cope with the course.
Mr. Barghachoun then had a patchy employment history. He has worked in several jobs (unskilled positions)   coupled with period of unemployment.
After his release from prison in November, 1989, Mr Barghachoun obtained work as a truck driver with a large juice company. He began on a casual basis until June, 1990, when he bought a truck and worked on a contract basis. He later bought a second truck and employed a driver. In March, 1992, he was dismissed after an altercation with a supervisor.
At the stage he began sub-contracting his trucks to various courier companies.   He eventually had three trucks.
OFFENCE
In discussing the offence Mr Barghachoun stated that his involvement in the offences started two days prior to the offence when his cousin (co-offender) told him that he and his girlfriend had been attached by a group of Yugoslavs.   The cousin also said that his car had been subsequently fire-bombed.     Mr Barghachoun said that his cousin asked his assistance to find the Yugoslavs who were responsible, with the intention of notifying the police of their whereabouts. He said that they, together with a third cousin, went to Canley Vale on the day of the offence where they left the car and his cousin returned with another car.
The three men then drove to Cabramatta in this car and waited outside the cafe frequented by Yugoslavs.     Mr Barghachoun related that they waited for three hours and that he was sitting in the back seat when one of his cousins saw a man going into a nearby bank carrying a bag.     He said that his cousin took a pistol from somewhere, jumped out of the car, robbed the man with the bag, ran back to the car and they sped off.
Mr Barghachoun admitted, however, that he presumed that the car was stolen, knowing his cousin’s pattern of stealing cars.
ASSESSMENT
Mr. Barghachoun presented as talkative and co-operative in interview. He also appeared as somewhat hyperactive with poor impulse control.
Enterprising by nature, Mr Barghachoun would seem to have developed his business acumen.           He now has the added responsibility of a child, although in the extended family situation of his culture, he was still free to work seven days each week.
Mr. Barghachoun appeared sincere in his desire to stay out of trouble, but he will need to make a greater effort if he is to succeed, as he still appears to lack insight.
Supervision by this Service would appear to have had little impression upon the offender, notwithstanding his willingness ot report regularly.   The added responsibility of his son and his partner may, in the long-term, provide Mr Barghachoun with the necessary incentive to address his attitudes and his lack of insight. In this event supervision during an extended period of parole may provide the offender with a level of support.”[30]
[30] Ibid, pp 608-610.
The preceding passage refers to the Applicant’s desire to stay out of trouble and his lack of insight. It also speaks of his partner and his son providing the incentive to address his problems. This same theme is repeated over and over again, in various reports over the next two decades. It is in substance the same representation that the Applicant makes to this Tribunal, this time referencing Ms Ramadan and her children as providing an incentive not to reoffend.
On 3 February 1995, the Applicant was sentenced to imprisonment for armed robbery in the Campbelltown District Court.[31]
[31] Exhibit 4, G4, Attachment A1, p 84 & G5, Attachment A2, p 90.
The decision of the NSW District Court relevantly states:
“HIS HONOUR: In this case Judge Phelan referred the matter to me for sentence. Mr Imad Barghachoun had previously pleaded guilty to the two charges in the indictment and he did so when re-directed, according to the note, on 14 October 1994.
The two charges to which he pleaded guilty were first that on 2 May at Canley Vale he stole a conveyance, a Gemini sedan, the property of Terrie Ann McGregor. And there was a second charge that on 2 May 1994 at Canley Vale, being then armed with an offensive weapon, namely a firearm, he did rob Chihua Lo of certain monies being the property of Chihua Lo
Subsequently an application was made to His Honour Judge Phelan to withdraw those two please of guilty. His Honour gave his decision on that application on 16 November 1994. His Honour declined the application saying “I am not satisfied in the circumstances related by him. I am not satisfied that he should, at this stage, (that is Imad Barghachoun) should at this stage be permitted to reverse his pleas and thus his application is refused”.
I have read His Honours’s reasons for refusing the application. It is not my function to review what his Honour decided but I will say this, having heard evidence now from some of the persons who are eye witnesses and also from the applicant himself and also from George Yazbeck. I accept his Honour’s ruling without hesitation.
As I said in the course of discussing the matter with counsel for the applicant, it appears to me that at the time the applicant was present in or near the motor vehicle parked outside the bank, outside which the robbery occurred. The main actor, the principal offender, was his cousin who had a pistol and menaced the person conveying money to the bank. The money was handed over. Then there was an escape in the stolen motor vehicle driven apparently by George Yazbeck with Imad Barghachoun in the rear seat of that vehicle.
I am satisfied on the material presented to me and I have no hesitation in saying that Mr Barghachoun was present there, in or near the vehicle, ready and willing to give assistance to the main perpetrator of the offence, that is, the offence of committing an armed robbery.
George Yazbeck came before His Honour Judge Phelan on Friday 16 December 1994 and he was before His Honour having pleaded guilty to the very same charges to which the present applicant Imad Barghachoun has pleaded guilty. George Yazbeck, like the present applicant, was a relatively young man. I am not informed exactly as to his age, but he does not appear to be any older than Imad Barghachoun the present applicant who was born on 10 March 1969.
I have enquired of counsel appearing for the applicant, as to whether or not there is any reason to distinguish between this case and the case of George Yazbeck. The only distinction that struck me immediately was that the present applicant probably had a longer criminal record, or a more serious criminal record and it is to be noted that he was on a recognizance with sentence deferred which was imposed at Parramatta District Court on 17 December 1992. That was a recognizance for three years, so he is obviously in breach of that recognizance. And there have been in addition since then in 1994, sentences for imposition on the Commonwealth for which he has served a number of terms of imprisonment, the lengthiest of which was six months which expired last Tuesday.
I have ready his Honour’s reasons for sentence. I notice that he made the comment that he had before him evidence to suggest, this is when he sentenced George Yazbeck, evidence to suggest that George Yazbeck was genuinely remorseful. Indeed he insists that he did not commit the offences at all.
But I consider that I should be guided by what his Honour did in relation to George Yazbeck. George Yazbeck may or may not have had some sort of drug problem, although he said here today in the witness box that he was affected by drugs at the time when he was interviewed by the police. But it has not been suggested to me, as I understand it, that the present applicant is affected by drugs or is subject to drugs. There is no suggestion of that is there Mr Lungo?
LUNGO: No your Honour,
HIS HONOUR: The evidence presented to me is that the applicant was conducting his own business. He was running a business and driving a truck as a sub-contractor and he said that he owned no less than three motor vehicles, one of which is a BMW.
Furthermore, he said that he has never been unemployed and even if he were, his parents are very, very generous people who would stand by him in any circumstances.
That being so, it appears to me that there is no reason why I should vary the ordinary proportion as between the minimum term and the additional term in this particular case. His Honour Judge Phelan did make such a variation when he ordered that the overall sentence of five years should be served as to three years by way of minimum term and as to two years by way of an additional term.
For myself I do not see the necessity for saying that there are special circumstances in this case. That being so and out of comity with his Honour I will impose a reduced additional term.
So the sentence that I impose is one of penal servitude for a term of three years, that is by way of minimum term, commending 31 January last. Should that be thirty first or 1 February?
PICKERING: It will be the thirty first. In regards to the starting date your Honour, I can indicate that Mr Barghachoun was bail refused from 2 May until he started serving a sentence on 1 June. Therefore he was bail refused one month on this offence alone.
HIS HONOUR: I see, so it should be taken back say to 1 January?
PICKERING: Yes your Honour.
LUNGO: Yes your Honour.
HIS HONOUR: To make allowance for the period in custody when bail was refused the sentence of three years by way of minimum term is to commence from 1 January 1995 and will expire on 31 December 1997. The additional term I impose is one of one year which expires on 32 December 1998, this being a sentence in excess of three years, there is no need for me to make any further orders as to release on probation.
I should make it clear to you Mr Barghachoun that your release to parole will not be automatic. That will depend on the decision of the Offenders’ Review Board.”[32]
[32] Ibid, G13, Attachment F, pp 175-179.
The relevant fact sheet says:
“  About 12:15pm on 2/5/94 the defendant was with co-offender George YAZBECK when they received a phone call from another co-offender Fred BARGASHOUN to get a car for the intention of doing ‘A Job’.         The defendant went with George YAZBECK to the carpark in Westacott Lane Canley Wale where YAZBECK stole a red Gemini sedan # UAY-547, owned by Terry Anne McGREGOR. They then drove to the co-offenders home where they met up with Fred BARGASHOUN. The defendant was then the passenger in the stolen red Gemini which was then driven to the carpark where the vehicle was originally stolen. The defendant and his two co-offenders then drove to Cabramatta road, cambramatta near the Commonwealth Bank.    There, the co-offender Fred BARGASHOUN got out of the vehicle and committed an armed robbery on victim Chiua LO who was banking his business takings at the bank. The offender Fred BARGASHOUN produced a .38 calibre revolver and demanded the money from the victim which the victim surrended to the offender.     Fred BARGASHOUN then ran back to the Gemini sedan and the three drove back to Westacott lane, there the proceeds were removed along with the revolver and placed in the boot of the Sigma.
Patrolling police saw the defendant and his co-offenders get into the red Sigma and drive out of the carpark.     Police followed the vehicle and chased the Sigma along a number of streets through Canley Vale. At the time, the defendant as a rear passenger of the Sigma.          The vehicle stopped on Malabar street where the defendant and his two co-offenders ran from the car.     The defendant only ran a short distance before he was apprehended.
All offenders were eventually apprehended. The two vehicles were towed to Cabramatta Police Station where a thorough search was conducted of the vehicles.    In the boot of the Sigma sedan, police located a loaded .38 revolver, a yellow paper bag containing $11,000.00, a red plastic bag containing $8,200.00, and a black balaclava.
On the advice of his solicitor, the defendant declines to be interviewed.”[33]
[33] Exhibit 9, p 587.
The Applicant said that his offending at this time was due to the influence of his cousin. In his evidence he said that his cousin was “the downfall of his life”.
On 21 February 1995 he was before the Bankstown Local Court charged with possession of an unlicensed revolver. This was taken into account in the 3 February 1995 sentence.[34] He was also charged with assault occasioning actual bodily harm. This was also taken into account in the 3 February 1995 sentence.[35]
[34] Ibid, p 79.
[35] Ibid, p 78.
On 11 May 1995, the Applicant was convicted of stealing, making a false instrument, and using a false instrument. He was sentenced to 12 months imprisonment.[36]
[36] Ibid.
On 1 September 1995, the Applicant was convicted of offences relating to armed robbery. He was sentenced to 4 years imprisonment.[37]
[37] Exhibit 4, G3, Attachment A, p 78.
The decision of the NSW District Court relevantly states:
“At about 9:25pm on 6 January 1994 Mr David James Hickey, the manager of “Babyco” at 194 Stacey Street, Bankstown, went, with Mr Raph Green, a security guard employed by “MSSS”, to the night safe of the National Australia Bank at the corner of Chapel Road South and Olympic Parade at Bankstown to deposit the business’ daily takings. The takings were in the bank’s night safe wallet held by Mr Hickey. As they were walking together on the footpath – Mr Hickey closest to the gutter and on Mr Green’s left hand side – towards the night safe, they were approached by two young men. One of the men accosted Mr Hickey – this man held a revolver. The other man accosted Mr Green. The man holding the revolver who had accosted Mr Hickey demanded that he hand over the night safe wallet. The other man knocked Mr Green to the footpath and struggled with him in an attempt to take his revolver. Mr Hickey threw the night safe wallet into the footpath and the man holding the revolver picked it up. Then the man holding the revolver went to Mr green who was wrestling with the other man on the footpath and held the revolver at his head and told him to be still so that the other man could take his revolver. After the other man had taken Mr Green’s revolver, the two men went across Chapel Road South towards a car parked on the road opposite the bank. As they did this, they passed in front of a car in which Mrs Lista Petrou was travelling as the front seat passenger. Mrs Petrou noticed the two men, particularly the one who was holding the revolver, and watched them enter into the car, in which two other men were seated, and watched the car be driven away. Mrs Petrou obtained the “registered number” of the car but, as it transpired, the number plates attached to the car had been removed (stolen) from another car.
As the description of the two men given by Mr Hickey and Mr Green to police – Mrs Petrou did not give a description to police – could have fitted thousands of men, police could not do much until luck turned their way. On 21 January 1994 Australian Federal Police attended at the prisoner’s home at 20 Winston Avenue, Guildford, with a search warrant to search the home in relation to the prisoner’s involvement on a “social security fraud” (if I may so describe it – see entry 1 June 1994 on Exhibit E). In the course of the search, police found Mr Green’s revolver hidden (but not very well) in a van in the backyard of the home. After arresting him, the prisoner was taken to the Sydney office of the Australian Federal Police where he was interviewed. In the course of the interview, he denied any knowledge of the revolver found in the van. Subsequently, (on 8 February 1994), Australian Federal Police told NSW Police of the finding of Mr Green’s revolver and, in due course, a video tape showing the prisoner’s face, as one of twelve faces, was prepared by police. This tape was shown (on 26 April 1994) to both Mr Hickey and Mr Green (although Mr Green believes that he was shown photographs, not a video tape). Mr Hickey identified the prisoner as the man holding the revolver who had robbed him of the night safe wallet but Mr Green was unable to identify anybody. Consequently (on 3 May 1994), the prisoner was interviewed and he denied any knowledge of the armed robberies and declined to be further interviewed about them. Notwithstanding his denials, the prisoner was charged with the armed robberies of Mr Hickey and Mr Green. Later (on 2 June 1994), when she was making a statement to police, Mrs Petrou viewed the videotape (the one shown to Mr Hickey and Mr Green) and she identified the prisoner as the man holding the revolver who was one of the two men who ran in front of her car on the night of the robbery.
the prisoner’s trial for the armed robberies of Mr Hickey and Mr Green commenced on 8 august 1995. The Crown’s case depended upon the identification of the prisoner by Mr Hickey and Mrs Petrou supported by the finding of Mr Green’s revolver in the prisoner’s van in the back yard of his home. Mr Hickey said that he was “absolutely sure” that the photograph of the man who had robbed him (Number 9 on the video tape) was a photograph of the man who had robbed him. Mrs Petrou said that the photograph of the prisoner (Number 9 on the video take) “looked like” a photograph of the man holding the revolver who ran in front of her car. Both Mr Hickey and Mrs Petrou identified the prisoner in court as being the man who they had seen, Mr Green said that he “recognised somebody” in the photographs who he though “looked like him” but was unable to identify any photograph as being a photograph of ether man. Mr Green identified the prisoner in court as being the man holding the “gun” at his head. I warned the jury about the value of the “in court” identification of the prisoner as one of the two robbers by Mr Hickey, Mr Green and Mrs Petrou. Constable M and Constable DK told of the finding of Mr Green’s revolver in the prisoner’s van in the back yard of his home. Mr Harris told his purchase of the van from the prisoner and his later return of it to the prisoner’s home. Mr McGuire told of helping Mr Harris return the van to the prisoner’s home. Constable P and Constable L told of their investigation of the robberies and their interview of the prisoner. The prisoner made a statement in which he denied being involved in the robberies. Mr Yazbek (a friend of the prisoner) told of buying Mr Green’s revolver from somebody at a snooker from Granville and outing it into the prisoner’s van. The jury found the accused guilty of those robberies. The jury’s verdicts did not surprise me. The Crown case was strong, if not overwhelming. Mr Hickey and Mrs Petrou were most impressive witnesses and their evidence had the fulsome sound of accuracy and truth and I can understand the jury’s acceptance of their evidence. The finding of Mr Green’s revolver n the prisoner’s van in the back yard of his home greatly supported Mr Hickey’s and Mrs Petrou’s identification of the prisoner. Mr Yazbek was a most unimpressive witness and his evidence had the dull sound of concoction and lie and I can understand the jury’s rejection of his evidence. I do not have any doubt that the prisoner was the armed robber who robbed Mr hickey if the night safe wallet and its contents and who held the revolver at Mr Green’s head while the other robber took his revolver.
So, to the sentencing of the prisoner. He was born on 10 March 1969.[38] Accordingly, he was aged nearly twenty five years when he committed the robberies and he is aged twenty six six months now. His background, upbringing, education and employments are referred to in the Pre-Sentence Report (Exhibit F) and they do not need to be restarted as nothing about them is relevant to his commission of these offences. He has a criminal record (Exhibit E) – putting aside the offences dealt with the Children’s Court, he has been dealt with the Local Court or the District Court for a total of thirty four offences. Of these convictions, two are particularly relevant – firstly, on 17 December 1992 sentence was deferred in relation to a breaking, entering and stealing offence subject to his entering into a recognizance to be of good behaviour for a period of three years, that is until 16 December 1995, and his commission of the subject offences amounts to a breach of the recognizance and this is an aggravating feature of those offences; secondly on 18 June 1993 he was charged with, inter alia, two offences of possessing stolen goods and, after being charged, he was granted bail and his commission of the subject offences amounts to a breach ”of his bail and this is another aggravating feature of the subject offences (he was dealt with for these offences on 18 March 1994). He has been in prison since 1 June 1994 serving the following sentences:
1. Four concurrent sentences of a fixed term of two month from 1 June 1994 to 31 July 1994 for imposition on the Department of Social Security;
2. a concurrent sentence of a fixed term of six months from June 1994 to 30 November 1994 for imposition upon the Department of Social Security;
3. a cumulative sentence of a fixed term of four months from 1 December 1994 to 31 March 1995 for imposition upon the Department of Social Security;
4. a partially concurrent/partially cumulative sentence of a fixed term of one year from 1 January 1995 to 31 December 1995 for stealing a motor vehicle (the conviction and sentence are under appeal.
5. a partially concurrent/partially cumulative sentence of a minimum term of three years from 1 January 1995 to 31 December 1997 for armed robbery (with an additional term of one year from 1 January 1998 to 31 December 1988) (the conviction and sentence are under appeal);
6. a concurrent sentence of a fixed term of one year from 11 May 1995 to 10 May 1996 for stealing;
7 a concurrent sentence of a fixed term of one year from 11 May 1995 to 10 May 1996 for using a false instrument;
A concurrent sentence of a fixed term of one year from 11 May 1995 to 10 May 1996 for using a false instrument,
Accordingly, he has been in prison from 1 June 1994 to today (1 September 1995), a period of one year three months and, irrespective of the sentences that I impose on him, he will be in prison from today until 31 December 1997 at the earliest, but subject to the decision of the Court of Criminal Appeal in relation to his appeals against the convictions and sentences for stealing the motor vehicle and the armed robbery. His criminal activities over six years from 1988 to 1994 indicate that he is something more than a “petty” criminal, that he has learnt nothing from the leniency extended to him or the punishments imposed on him, that he is not prepared to cease his criminal conduct and that he is not likely to be rehabilitated. He has been found guilty of having committed two armed robberies and he has admitted having committed two additional offences, firstly, the unlawful possession of Mr Green’s revolver on 21 January 1994 (the second additional offence referred to in the Form 2 document) and, secondly, an assault upon Mr David Harris (the brother of the witness, Mr Mark Harris) on 18 April 1994 (the first additional offence referred to in the Form 2 document). These additional offences must not be overlooked on the determination of an appropriate total sentence for the two armed robbery offences, which, I accept should be considered as related acts, or as contained in the one act, rather that as two separate and unrelated acts. Really, nothing more needs to be said as everything else (punishment, deterrence, lack of contrition) is obvious. I have determined that for the subject offences, taking into account the additional offences, the total sentences should be penal servitude for eight years. The “usual” minimum term would be six years and the “usual” additional term would be two years. However, as the prisoner has been in prison since 1 June 1994 and will be in prison to 31 December 1997, a period of three years six months, I propose, after taking into account the principle of totality, to reduce the total sentence so that the prisoner will serve a total minimum term of seven years six months from 1 June 1994 and thereafter be on parole for an additional term of to years six months for all of the offences dealt with since 1 June 1994. In the result, the total sentence that I will impose will be six years sin months with a minimum term of four years and an additional term of two years six months.
[38] Actually 10 March 1970.
Accordingly, Imad Barghachoun for the offences of armed robbery, of which the jury found you guilty, you are convicted. As to the first offence, the armed robbery of Mr Hickey, I sentence you to penal servitude for a fixed term of four years to commence on 1 January 1998 and to expire on 31 December 2001. As to the second offence, the armed robbery of Mr Green, I sentence you to penal servitude for a minimum term of fur years to commence on 1 January 1998 and to expire on 31 December 2001, on which date you are to be eligible to be released on parole, although whether or not you will be released will be for the Offenders Review Board to decide, and I fix an additional term of two years six months to commence on 1 January 2002 and to expire on 30 June 2004. I order that you be subject to supervision by the NSW Probation Service whilst you are on parole during the additional term. In sentencing you for this offence I have taken into account the additional offences referred to in the Form 2 document.[39]
[39] Exhibit 4, G14, Attachment G, pp 180-185.

On 23 October 1995, his application for leave to appeal against the conviction and the severity of sentence was dismissed.[40]
[40] Ibid, G3, Attachment A, p 78.
On 22 February 1996 the Applicant was convicted of assault occasioning actual bodily harm and sentenced to imprisonment for a period of four months from 22 February 1996.[41]
[41] Ibid.
On 13 February 2001 the Applicant was advised that his visa was liable to cancellation under S 501 of the Act on character grounds. He made written representations in response on 25 May 2001.
By letter dated 5 July 2001, the Applicant was advised:
“On 13 February 2001, the Department of Immigration and Multicultural Affairs notified that your visa may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
You responded in writing on 25 May 2001 and your comments were carefully considered and taken into account.
A decision has been made not to cancel your visa. It will continue to provide you with permission to enter or remain in Australia.
Please note that cancellation of your visa may be reconsidered in the event of further or fresh information coming to notice. Your visa may also be cancelled in the event of you incurring a liability for cancellation or new or different grounds.
The Applicant said in relation to this warning:
“I do not remember being given the warning in 2001. I don’t remember signing anything to acknowledge the warning. For the 2010 (?) warning my solicitor never explained the seriousness of the matter. He made out that it was a misunderstanding. I saw him for about ½ an hour out that it was a misunderstanding. I saw him for about ½ an hour and gave him $200. Please see the attached my statement to explain further.
I definitely will not reoffend. Before I did not realise the seriousness of or that I could get deported. I though Permanent Residence means Permanent. I have also now addressed my drug problem and psychological condition (PTSD) which undiagnosed until 2015. I have not taken drugs for over 3 years and have had intensive treatment (VOTP) for my PTSD – I have received help. I will not reoffend again.”[42]
[42] Ibid, G16, Attachment I, p 202 and G59, Attachment AJ1, p 380.
He was spoken to personally about this by an officer of the Department on 11 July 2001 at Long Bay prison.[43]
[43] Ibid, G17, Attachment I1, p 203.
The Applicant says of this:
“I was shocked when I received news the department was considering a cancellation on my visa at the end of 2016. I do not remember Heidi Speed visiting me in Long Bay jail advising me of the decision not to cancel my visa.”[44]
[44] Ibid, G58, Attachment AJ, p 371, para 35.
In his evidence the Applicant said that he did not take this warning seriously.
A NSW Department of Corrective Services (DCS) pre-release report dated 4 October 2001 states:
“…………
SIGNIFICANT SOCIAL BACKGROUND
Attached is a copy of the Pre Sentence Report prepared by Ms H Goldrick and presented to the sentencing Court. This report outlines Mr Bargachoun's background and upbringing as well as his response to periods of supervision by the Probation and Parole Service.
During his time in gaol Mr Bargachoun has retained the support of his family, however his long term relationship with the mother of his child is no longer extant. He does however remain in contact with his son by way of visits with family members and phone calls.
It is also noted that Mr Bargachoun is not an Australian Citizen and was "of interest" the Department of Immigration and Multicultural Affairs. Contact with this Department has established that Mr Bargachoun has been issued with a warning and will be allowed to remain in Australia when released from custody.
PREVIOUS COMMUNITY SUPERVISION
The Case History indicates that whilst cooperative with his reporting responsibilities supervision by the Probation and Parole Service did not deter him from continuing illegal activity.
CORRECTIONAL CENTRE HISTORY
Correctional Centre Behaviour
During his sentence Mr Bargachoun has developed a reputation as a difficult prisoner for Correctional Staff. He has been identified as a leader of the Lebanese Community within the system and has been regularly moved from Centres for "good order and discipline". Mr Bargachoun acknowledges that he was seen as a leader and believes that this came from the reputation of his cousins who had preceded him to gaol leaving him with an inherited position.
Although Mr Bargachoun's printout of offences in custody does not reflect this status he has been the subject of many orders for removal and segregation. However, there has been a more recent period that has demonstrated an effort by Mr Bargachoun to be more compliant. He was accepted into the Violence Prevention Program and eventually has had his classification reduced to his present minimum security level.
Despite this reduction in classification Mr Bargachoun continues to have problems accepting the limitations of prison regulations. On 13 August 2001 he was found in possession of a mobile phone and was disciplined by way of being placed on boxed visits. On 28 August 2001 during an operation conducted by the Security Unit a mobile phone was located secreted in a position outside of Mr Bargachoun's cell. He was placed before a Case Management Team and recommendation for a change of gaol of classification was put forward. On 13 September 2001 a Mr Bargachoun signed a Behavioural Contract that requires him to accept all prison rules or he will face having his security classification reviewed again with the possibility of it being increased.
Education
During his sentence Mr Bargachoun has undertaken three AEVTI Modules in Reading and Writing. He has also completed a Health and Fitness Course and gained accreditation as a Sports First Aider.
Employment
For most of his sentence Mr Bargachoun has been housed in a maximum security environment which has limited his work history. Whilst at Cessnock he has been employed in the Demountable Refurbishment area.
DRUG AND ALCOHOL ASSESSMENT/TREATMENT
Whilst denying that his offences were linked in any way to drug misuse, Mr Bargachoun acknowledges that he did have a problem controlling his gambling on card machines when last at liberty. He also acknowledges that at one time he attempted to bring steroids into Maitland Prison during a period when he was actively seeking to buildup his physique. As a result of this he attended for counselling with an Alcohol and Other Drug Worker and then completed the programs offered by this Service. During 1998 and 1999 he undertook Anger Management, Drug Education and Harm Minimisation courses.
Mr Bargachoun has also participated in the Health Information Workshop and Peer Support Network conducted by the FIIV and Health Promotion Unit.
PSYCHOLOGICAL ASSESSMENT/TREATMENT
Mr Bargachoun has utilised this Service on an "as needed" basis. He had regular contact with a Psychologist during his stay at the Malabar Special Program Centre as outlined below.
MALABAR SPECIAL PROGRAM CENTRE
During the early part of 2001 Mr Bargachoun completed the first stage of the four (4) stage Violence Prevention Program. Initial reports indicate that he made good progress in the program area but continued to have difficulty conforming to prison discipline. He came to notice for unauthorised property and was suspected of having access to a mobile phone. A Custodial Officer submitted a report outlining a perceived threat and therefore Mr Bargachoun was removed from the program.
CHAPLAINCY
In May 2001 Mr Bargaehoun completed the Spiritual Awareness Course (stage 1). He states that he is of the Islamic Faith and that he has begun to think about the tenets of his religion and is attempting to live a lifestyle based on the teachings of the Koran.
RELEVANT ATTITUDES OF INMATE
Offence
Mr Barghachoun has been serving a variety of sentences for differing offences. Some he acknowledges full responsibility for and others he insists he was not guilty of. However he states that he accepts that his behaviour in the period leading up to his imprisonment was leading him in the direction of gaol and he accepts that he deserved a gaol sentence. In relation to the most serious of the matters, ie. the armed robberies, he insists that he was innocent of one but the evidence he presented to the Court was not accepted by the jury. In regard to the other he claims to have been unaware of the initial purpose but understood that something illegal was to take place and he took no steps to distance himself from the activity.
When discussing this aspect of his life Mr Bargachoun advises that he was brought up in a respectable family. He related that his experiences as a youth in Lebanon and Australia left him with a feeling that authority and the law was not something to be respected but rather to be treated with some contempt. He now states that he understands that his future is dependent on his accepting that hard work is the key to a successful life.
Conditional Liberty
Mr Bargachoun has previously been subject to such orders and has reported as required.
POST RELEASE PLANS
Accommodation
On Release Mr Barghachoun will reside with his parents and other family at the family home at 20 Winston Avenue, Guildford. An officer from the Fairfield District Office has visited the home and confirmed that Mr Barghachoun will be welcomed home by his family. The home is assessed as suitable accommodation.
Employment
Initially Mr Barghachoun will rely on benefits but believes that he will be able to secure work as a truck driver soon after release. He plans to eventually re-establish his transport business which he apparently ran with success prior to his imprisonment.
ASSESSMENT AND RECOMMENDATION
Assessment
Mr Barghachoun presents as a confident and talkative man. He acknowledges that he has a lengthy criminal record and that even though he was running an apparently successful business could not help himself when a chance to secure easy money presented itself. He now claims that the years in custody have taught him how much he has missed out on, especially in relation to involvement with his son and family. It is accepted that Mr Barghachoun has the resourcefulness to carry out his plans and he will have the support of family to assist him.
Whilst Mr Barghachoun appears earnest in his protestations that he has changed his attitudes, his history, both within the correctional and community setting indicates that he will have difficulty in modifying his behaviour when subject to less stringent scrutiny.
Recommendation
Release to parole is not supported at this time. If the Board concurs with this recommendation then it is suggested that Mr Barghachoun be encouraged to demonstrate that his commitment to live by the rules should start whilst he is still in prison as a show of good faith that he will endeavour to carry this over on release to the community. A review in six months is recommended should the board refuse parole at this time. There does not appear to be any specific program that Mr Barghachoun should undertake in the interim.”[45]
[45] Ibid, pp 611-615.
A DCS pre-release report dated 4 October 2001 stated that the Applicant “has developed a reputation as a difficult prisoner”. It reports him as saying that “years in custody has taught him how much he has missed out on, especially in relation to involvement with his son and family”. It goes on to say:
“Whilst Mr Barghachoun appears earnest in his protestations that he has changed his attitudes, his history, both within the correctional and community setting indicates that he will have difficulty in modifying his behaviour when subject to less stringent scrutiny.
Recommendation
Release to parole is not supported at this time. If the Board concurs with this recommendation then it is suggested that Mr Barghachoun be encouraged to demonstrate that his commitment to live by the rules should start whilst he is still in prison as a show of good faith that he will endeavour to carry this over on release to the community. A review in six months is recommended should the board refuse parole at this time. There does not appear to be any specific program that Mr Barghachoun should undertake in the interim.”[46]
[46] Exhibit 9, pp 611-615.
At its meeting on 3 December 2001 the NSW Parole Board refused parole on the basis of the Applicant’s risk of reoffending and poor prison performance.[47]
[47] Ibid, p 662.
DCS records dated 29 January 2002 state:
“Imad is professing to being a changed person. He is intent on getting his parole. He works as many hours as he can, does some training, has his meal and then goes to his cell. Claims he has withdraw from the gaol politics. Has told the other Lebanese inmates to do their own gaol.”[48]
[48] Ibid, p 43.
On 21 February 2002 a DCS parole report recommended release on parole.[49]
[49] Ibid, pp 617-8.
DCS records for 24 February 2002 state:
“……
I interviewed Mrs Geogette Duggan and she informed me that her son Peter SABA had told her that his life had been threaten by Inmate Imad BARGCHOUN after he had failed to make two knives in the demountable work shops and give them to BARGCHOUN.
Mrs Duggan also stated that her son had informed her that he had been threaten by three inmates in 1 Wing shower block, and that these Inmates had placed a knife against her son’s throat and had threaten to kill him, if $200.00 was not placed into inmate BARGCHOUN account by 27^th February 2002.
Mrs Duggan further stated that she had witnesses Inmate BARGCHOUN (identified to her by her son) approach her son during a contact visit in the minimum security visiting section on the 24^th February 2002 and again threaten to kill him, if the monies were not placed into the account by the 27^th February 2002
Mrs Suggan stated that she would send the monies to BARGCHOUN via a money order in the post. Mrs Duggan was advised by myself not to do that as the money order would be stopped.
I then interviewed Inmate SABA at the Deputy Governors Office and he confirmed to me that he was being stood-over and that his life was being threaten by Inmate BARGCHOUN after he had informed staff about the knives inmate BARGCHOUN was attempting to get made to arm other Lebanese inmates in his gang.”[50]
[50] Ibid, p 371.
The Applicant’s conduct resulted in this recommendation being withdrawn. A DCS supplementary parole report dated 26 February 2002 states:
“………..
The report prepared by Senior Assistant Superintendent Latimer certainly raises serious concerns that Mr Bargachoun has been involved in stand over activities.
The activities outlined do not accord with Mr Bargachoun’s undertaking to distance himself from untoward behaviour during the period of the Board’s standover. Mr Bargachoun continues to involve himself in criminal activities inside gaol and therefore his ability to live a law-abiding citizen life on release must be doubted. In the initial report of 4October 2001, it was suggested that Mr Bargachoun should demonstrate by his behaviour that he was serious in his protestations that he had changed.
Given the information that has now come to light the recommendation in favour of release contained in the report of 21 February 2002 is withdrawn. It is recommended that Parole be refused.”[51]
[51] Ibid, pp 621-622.
The recommendation against parole was maintained in a supplementary parole report dated 3 April 2002.[52]
[52] Ibid, p 623.
At its meeting on 22 April 2002 the NSW Parole Board again refused parole on the basis that Correctional Officers indicate that the Applicant “continues to live by his own code,”[53]
[53] Ibid.
At its meeting on 22 April 2002 the NSW Parole Board again refused parole on the basis of the Applicant’s risk of reoffending and poor prison performance.[54]
[54] Ibid, p 663.
A DCS pre-release report of 24 October 2002, recommended parole, subject to certain conditions:
“………
Mr Barghachoun’s former wife has taken out an ADVO against Mr Barghachoun., This apparently followed a threat made to her while Mr Barghachoun was still at Cessnock Correctional Centre. He denies this, but does acknowledge a previous history of violence and is accepting of the Order. As a consequence, contact for Mr Barghachoun with his son has been minimal, he stated an intention to seek some contact via Family Court action when released.
……….
RELEVANT ATTITUDE OF INMATE
This again remains similar to those reflected in Mr Fletcher’s report. Further to this, he views his family, his partner and religious beliefs as being pivotal in his ability to lead a lawful lifestyle if released.
………
ASSESSMENT AND RECOMMENDATION
Mr Barghachoun presents as having taken heed of previous concerns that he demonstrate his “commitment to living by the rules”. His performance at Bathurst excepting for the steroid offences would seem testament to his ability to abide by conditions expected of him.
The support offered to him by his family and community is seen as offering him the positive aspects required post-release conditional to his accepting their support and direction.
Release to parole is now supported conditional to:
·Alcohol and Other Drugs counselling.
·Urinalysis.
·Attendance for such anger/violence prevention programmes or counselling as directed.”[55]
[55] Ibid, pp 624-626.
The Applicant married Nasrien Amer in April 2003. She was 5 months pregnant.[56] She lost this baby. They have a daughter from that marriage however, “Child A”. She is 17 years of age and will turn 18 on 20 April 2023. This marriage ended in about 2009 due to the Applicant’s drug taking and lifestyle.[57]
[56] Ibid, p 53.
[57] See earlier discussion at para 13.
The Applicant has a long history of drug abuse. He has been addicted to heroin, and since about 2004, methamphetamine.
He also has had a gambling addiction. He had line of credit against his house and claims to have spent over approximately $100,000 on this habit.[58]
[58] Exhibit 9, p 644.
The Applicant says that he has been diagnosed with PTSD. No expert evidence was called on this subject. There are, however, clear references to mental health issues in the material before the Tribunal.[59] The Applicant has seriously contemplated or attempted suicide.[60] Since about 2012 the Applicant has been proscribed Avanza (100 mg- later 50 mg.) and since about 2015 Seroquel (50mg).
[59] Exhibit 6, pp 7-10, 12-13, 18-19, 70-74 and Exhibit 8, pp 99-101.
[60] Exhibit 6, pp 3-5, 10-11, 15, and 82-3.
The Applicant has been seen by various clinicians, mainly within the NSW Correctional system.[61]
[61] Exhibit 8, pp 7-10, 12-13, 18-19,70-74, and 99-101.
DCS records dated 23 October 2002 state:
“visited family home. Mum and da and fiancé present. Accommodation suitable. Parents more than wiling to have Imad home. Very supportive, explained obligations of parole to parents and fiancé and explained that breach may very well result in return to prison. Imad has had no contact with old friends since he was incarcerated 8yrs ago and he has no plans to resume contact with them. Has a job awaiting him upon release – crane operator. No AOD issues. Parents are tired of worrying about him and want him home. Believe he has changed and ‘grown up’ and want them all to make a fresh start together. Discussed with fiancée difficulties Imad may face upon release after 8 years in jail and how this may impact on their relationship. She accepted that it may be difficult and is more than happy to maintain contact with ppo to help with any issues as they arise. Discussed possibility of parolee’s program which she agreed would be a good idea. She also said they talked about r’ship counselling upon his release to help iron out some issues before they become problems. Had lengthy discussion with parents in arabic about their role in assisting son and the consequences of his failure to adapt to life on the outside- they are prepared to all they can to help. No problems in accepting visits from PPO or attending appts with son if needed.”[62]
[62] Ibid, p 46.
At its meeting on 24 October 2002 the NSW Parole Board granted parole.[63]
[63] Ibid, p 664.

DCS records for 1 November 2002 state:
“client reported as directed in company of niece Rhonda. explained that I was his office and went through parole order and conditions. filed in PD form. also discussed reporting and HVs. ID organised. had a job driving trucks waiting for him, possibly to start tomorrow but Imad considering taking a week to catch up with mum and dad and siblings and fiancée. provided name of employer who has been to parole board in the past in support so he knows about supervision and history. discussed drug use – Ist used 3 years ago in jail to cope with death of cousin (also in custody) from an o/d. said he has only experimented with drugs and only in jail. has no intention of using. doesn’t drink, not even socially. plans to remain living at home. has no idea where old friends are and doesn’t want to know. wants to stay out of trouble. close to family and a small group of friends who are good support. no gambling issues – did program in jail and has no debts. niece Rhonda has contact with Imad’s ex wife and will be go between for now – ex wife has agreed to regular contact b/w Imad and his son. Imad made it clear that he wants to stay out of trouble, start work, make money and try to repair the damage he has done. knows it is up to him to comply with order and resist pressure to go back to old ways. is aware of the level of the level of support he has at home and doesn’t want to let parents down again. discussed problems which may arise upon release – sleeping, coping with having choices and fewer restrictions. encouraged Imad to keep me posted so we can deal with them as they arise. didn’t sleep well last night as bed was too big and comfortable – plus he is still excited about being out. will advise me if he chooses to start work this week.”[64]
[64] Ibid, p 46.
DCS records for 4 December 2002 state:
“client reported as directed. all going well except for access with his son. Ex wife has been asked to put in writing that she will allow access but she hasn’t done it yet. Imad will wait for AVO to expire in 2 weeks. Kylie (ex-wife) is insisting on being present for any access Imad doesn’t want that – will agree initially but then wants access alone so he can take his some places and do things with him. Fiance is now saying if Kylie will be there then she wants to as well. Imad has told her that this is about him and his son and not them. I advised that this is good. he said if worse comes to worse, he will seek legal advice and get orders from the family crt permitting him access. Other than that, all is well at home. work is good -always takes someone on the long drives – either fiance or nephews. it is easier to drive 3 hours if someone is with you and it also allows him to spend quality time with his family and fiance. swears no drug use. expl that relaxed reporting approved over Xmas.”[65]
[65] Ibid, p 49.
DCS records for 19 December 2002 stat”:
“The AVO from Kylie (ex-wife) expires tomorrow. Advised client to be careful when he tries to contact her in regards to seeing his son, stated that he was going to as his sister to contact her on his behalf. Is concerned about Kylie not letting him see his son and is willing to go to court to sort things out if he has to but wants to see if she will be reasonable in granting him access first. Work is still going well. Reminded to report to Faye on 06/01/03.”[66]
[66] Ibid.
DCS records for 15 January 2003 state:
“parolee released after 8 years in custody. doing remarkably well, considering his early period of incarceration raised concerns about anger/standovers/lac of compliance. Employment verified and contact maintained with employer. Driving trucks with recent approval granted for interstate travel. had an AVO taken out against him by ex wife which was expired. contact with ex revealed no current issues concern and she has agreed to client having regular access with his son, which pleases him to no end. family and fiance supportive and HVs revealed no concerns. client works long hours and knows he must not revert to old habits and old associates. no D&A issues. from day one, client presented as committed to putting his past behind him and making significant changes to his life. has not missed an appt do date and shows maturity in his decision making.”[67]
[67] Ibid, p 51.
DCS records for 15 April 2003 state:
“client reported – apologised for being late but very busy at work today. all going well. dad’s health a bit poor. Imad got married 2 weeks ago and moved into his house next door to mum and dad’s – 21 Winston Ave, Guilford. Ph 8720 2841. not seeing Bilal as much due to work – absolutely no trouble with ex, he has just been busy. I suggested it’s more important to maintain contact as he fought so hard to get it and he wouldn’t want his son thinking he didn’t care – no pone contact either for 3 weeks – I expl it doesn’t take much time to make a call. said I would do HV to new house soon. will call.”[68]
[68] Ibid, p 53.
DCS records for 30 April 2003 state:
“client on parole after 8 yrs in jail for armed robbery. Performing extremely well on parole – employed full time permanent and employer has no problems with him. Recently married and expecting his second child. Has contact with son from first marriage. Family very supportive and proud of his progress. Wife said she was not expecting it to be this easy. No drugs, no alcohol, no gambling. HVs have been productive – he and wife recently moved into their own home next to mum and dad. – client always report and maintains contact regarding changes or problems. only associating with family – no old mates hanging around. has made a serious commitment to get his life on track and keep it that way. motivated and doing well to date. some concerns to do with his temper when he lived at home – he admitted it was to do with adjusting to living with mum and dad after 8 yrs jail. mum and dad not overly worried and understand they have to be patient while he adjusts and settles. no issues with his wife and client playing a carer’s role in relation to his parents. PPS only playing a monitoring role at present – no major issues to discuss. seeking approval for bi monthly reporting in view of the above and my confidence that client will call if something goes wrong or he needs assistance.”[69]
[69] Ibid, p, 54.
DCS records for 20 November 2003 state:
“reported as HV difficult at the moment. no changes. doing extremely well and in his words ‘have more than I deserve’. showed me a play slip for $3500 per fortnight. Loves to work and his employers are very good to him. home is good – dealt with losing the baby but it still comes up. parents overseas and doing ok, other than some health problems which keep propping up. talked about how well he is doing and how he respects that his job has grounded him. he said he now has one friend who has never been in trouble and his family – and that is all. he said he chose to stay on the right track and we talked about stuffing up and he said that is a choice too. he said he loves his life and has too much to lose if he jeopardises it. last saw son about 3 months ago and will take legal action to get regular contact. said Kylie is playing games and while he knows he should be in regular contact, it is hard if she isn’t playing by the rules. he said rather than confront her, he has chosen to let the lawyers sort it out. will see his lawyer soon. told him not to leave it too long. he said he sends money but feels that void. seems to be going very well. no concerns about anything. told him I will do HV in December and then see him again in January.”[70]
[70] Ibid, p 57.
DCS records for 10 February 2004 state:
“Imad reported and had a joint interview with parolee Anthony Matar – MIN 318291 – had a long chat and the boys got along well. Imad told Anthony:
·     it’s up to him whether he stays out or goes back in
·     it’s all down to choices we make and living with the consequences
·     he should do everything he can to better himself – for himself, not for others
·     he should disassociate himself from those in jail – start again, as hard as that is
·     to be wary of ‘easy money’ or mates on dodgy cars
·     to get a job and not try catch up on what he missed – Anthony said he needs time to settle down and then he will get a job – Imad told him he understands this but the aim is to get on track using this as an excuse for not getting a job will become his habit – as there will always be something he needs to sort out or someone he needs to support. told him to set goals and go for it
·     Imad said you never recover from being in jail if the sentence was too long. Imad has been out over a year and he still has nitemares and finds himself feeling odd – but it’s over quickly and he gets on with life. he has responsibilities and he attends to them.
·     Imad encouraged Anthony to move forward and make something of himself. get back into his spray painting trade or whatever he thinks he would like to do, day in and day out.
Anthony interacted well with Imad – said he isn’t doing badly and won’t go back to jail as he has too much to lose. Interestingly, Imad said he knows he isn’t going back as he isn’t doing anything he shouldn’t be doing and isn’t associating with people he shouldn’t be – that’s his choice. Anthony said the same thing and then looked at me and I reminded him that using marijuana is illegal and people can do stupid things when the drink is too much. he nodded like he had heard it all. the guys chatted on and I think Anthony got something out of it – if only because Imad understood what he was talking about and he had been there too. I wanted Antony to see that Imad’s history is longer and more violent and more concerning than most offenders, yet he has made some amazing changes to his thinking and lifestyle and has stuck to it. I just wanted Anthony to hear, from someone who understood, that it can be done.”[71]
[71] Ibid, p 58.
DCS records for 31 March 2004 state:
“wife home – Imad came later – said he had to go back to work after I left. Things going really well. Imad working hard. Had a chat to wife Nassrin – she is happy with him and glad he is focused on getting his life in order. She has no problems with his attitude or friends. She said he has 2 friends who call him from jail and he forever counsells them to stay on the right track b/c there is so much to be gained from being good and productive. Nassrin said at first she was concerned about these phone calls but after she eavesdropped, she felt relieved that he was helping them and that she didn’t have to worry. He works 6 days and Sundays are usually with his family – she doesn’t get a lot of time with him but she knows he makes an effort for her and sometimes they do day trips. She would rather he be working than getting into trouble.
Imad came home – he is fine, going to the gym and feeling better – even though he has little time for such things. working long shifts but likes that – happy with his boss who looks are him. he showed me his pay cheque - $3200 for 2 weeks. financially doing well but he has about $400 000 in loans – car and house loan. wants to pay off asap. not having access with son – kylie playing games and Bilal at last phone call told his dad he hates him and doesn’t want to see him anymore. Imad has not contact kylie and wont unless it is though soli – he saw soli but hasn’t heard from him and will chase him up. he said that this hurt him a lot as he wants access with his child and will take whatever he gets. he said he knows she cant say anything about him as he has not don’t anything wrong and has not stepped out of line and she can say what she likes. It isn’t true. he asked me if I had any contact with kylie and I said no, but if I decided to call her, I would let him know.”[72]
[72] Ibid, p 59.
DCS records for 4 May 2004 state:
“pc to ex wife Kylie – she said things that are not good – she initially didn’t want imad to have contact with his dad b/c he didn’t want to but she convinced him and it was ok for a while – then he stopped calling or visiting and for a year, he had no contact with Bilal. now Bilal doesn’t want to see or hear from his dad – but a soli has been in touch. she has not told her son that. He hasn’t been harassing her but his wife is rude to her – they have had no contact for some time. her current partner is a cop. she said she is hearing things about Imad – he assaulted 2 relatives, he robbed a coke truck and he is into car rebirthing. He also told her that he as a daughter from a fling he had with a girl – she was born in December. she said initially Imad confided in her a bit – that’s how she knows about the baby, but his wife doesn’t know. she said she is not surprised that he cannot be faithful. she doesn’t want me to discuss this with Imad or she will be in trouble. kylie is doing nursing part time – hard work. happy to speak to me again.”[73]
[73] Ibid.
DCS records for 11 May 2004 state:
“pc from Kylie – she is worries about her son. i told her he must be her priority and her feelings for Imad must stay out of this despite. she said last week at school, Bilal got into trouble and was taken to the principal – she had already told staff to watch for changes in his behaviour in view of what is going on – and he started crying and said he doesn’t want to see his dad. the teacher and principal said they would go to court if they had to. told kylie to get some legal advice and do things properly – find out if a court can actually force him to have contact. she said she doesn’t mind if they see each other – he is the father after all – but she doesn’t want to force him to do something he doesn’t want to do. told Kylie this is becoming ‘he said/she said’ and i am not in a position to take sides – but she should keep talking to her son so he doesn’t bottle things up. perhaps a school counsellor? she said that principal mentioned that.”[74]
[74] Ibid, p 60.
DCS records for 29 June 2004 state:
“parole order expired 30/06/04. Current address: 21 Winston Ave, Guildford.
client on parole after 8 yrs in custody for robbery offences. did very well, reported and was available for home visits. contact with family and wife indicated no concerns. Imad decided when he got out of jail that he would make it work this time. was employed within days of release and has not missed a day of work…his pay cheques show $3500 for two weeks. he has bought a house next door to mum and dad and helps them out as they are elderly.
he has an ex and an 11 yr on sold – saw him initially after release but then got caught up in problems and stopped contacting him – Imad’s wife fell pregnant, had complications, miscarried and she got very sick afterwards, spent a month in hospital. now that he wants access again, his son is saying no. family law solicitors involved – he is trying to sort it out before it goes to crt – all he wants is regular contact, but it seems son is resistant.
ex gave info that Imad was involved in crim again but not enough evidence to charge him – she gave specific info and she said his relatives told her this…I checked with Intel – there are alerts about him but he has not been charged with anything…my concern is that his ex’s new boyfriend is a cop who (i believe) is giving her info on Imad.
[75] Ibid, p 62.
I probed Imad – he said he is not doing anything but confirmed being stopped by cops and searched a few times – nothing on him. he said he knows how much he has lost over the years and he will not jeopardise that…he has many friends and relatives in and out of jail so he knows how easy it is to undo the good he has done. he seems pretty motivated and appears to work such long hours that there is no time for anything else. Imad is aware that the Intel have had alerts on him for years and he knows that if he is in the wrong place at the wrong time, he is back in jail…that is why he is staying away. seems to be involved in local mosque, working with young people to deter them…fingers crossed, he won’t be back.”[75]
DCS records for 15 September 2008 state:
“Imad presents as co-operative and stable. He seems to function at a fast past and presents with pressured speech.
He reports he is re-experiencing some intrusive and traumatic memories of his childhood in Lebanon. It seems it is some aspects of the gaol environment that are triggering these memories. Imad reports he has only just started speaking about his experiences and this is cathartic for him. It seems boredom and idleness of gaol is also increasing his distress. Discussed some strategies for coping with these memories as well as some activity planning for his day. One of his aims is to get to Area 2 for employment.
He reports a history of self-harm and suicide but nothing recent. Reports an attempted hanging at this gaol in 1994 due to being falsely accused of burning another cellmate. He reports engaging in various high risk behaviour (for example in his car, says always alone) in the community. He strongly denies any current/recent thoughts, acts, plans or threats of self-harm and/or suicide at the time of contact. He cites his 3 year old daughter as a significant protective factor and reports he has good support from family and friends.
Reports he was psychiatrically medicated in gaol in 1994 due to his suicide attempt and he reports to taking no psychiatric medication at this time. May consider mental health referral in the future but not at this time.”[76]
[76] Ibid, p 65.
On 8 October 2008, the Applicant was convicted of dealing with property suspected of being the proceeds of crime. He was sentenced to 16 months imprisonment commencing on 11 August 2008 with a non-parole period with conditions of 12 months subject to supervision.[77]
[77] Exhibit 4, G3, Attachment A, p 78.
The Decision of the Fairfield Local Court relevantly states:
“HIS HONOUR: Mr Raheb certainly said everything Mr Barchachoun that could be conceivably said in your favour. However, it’s my duty not only to reflect what is in your best interest but also what is in the community’s best interest. And this is a very serious crime.
The facts are these, Mr Martin Badger is the owner and proprietor of Australian Trucking Services. The business is essentially a transport company dealing with movement of large loads. The witness quite often transports large shipping containers of goods to various locations on behalf of the business owners. At 2pm on Saturday 1 September, this particular chap was driving the prime mover bearing number plate so and so, I wont read that. He attended Port Botany, collected a 40 foot high cube container which was stocked with 104 unassembled Hummer motorcycles and various motorcycle parts.
Between 6.45pm and 7pm that night he parked his prime mover and attached cargo near the intersection of Fray Street an Fairfield Road, Guildford. The delivery location at the property was closed at the time so he left the truck there with the container.
At 8pm on Sunday 2 September he drove past the Foray Street and noticed that the truck and container were no longer there. The witness reported the matter to police. Everything, in short went missing. The wholesale value of the property is $1.150 per bike, totalling $119,600. The exact value of the motor cycle parts is unknown but estimated at $2,299.
On Thursday 20 September, that’s 19 days later, were the at the premises at 21 Winston Street, Guildford West by virtue of a search warrant for an unrelated matter. The accused is the owner oof 21 Winston Street, Guildofrd however leases the property out. The accused states although he doesn’t reside there at 21 Winston Street, he still occupies and controls the driveway and garage to that premise. He also owned the neighbourly property of 20 Winston Street, Guildofrd West with his parents. He resides in a rear granny flat and his parents occupy the main house.
Whilst police were at 21 Winston Avenue (as said), Guildford West they sighted Hummer motorcycle in a rear utility parked on the front lawn of 20 Winston Avenue, Merrylands (as said) This motorbike was incidental to one of the bikes stolen from the prime mover that I just mentioned.
In accordance with the lawful search warrant Guildford West Police searched the attached garage which is owned and occupied by the accused. This garage was adjacent to and adjoins the garage neighbouring the 20 Winston Avenue by common law. The door was open at the time of police entering, which enabled them to see through in the rear of 20 Winston Avenue. Police sighted a further hummer motorcycle which was also identical to the model of the stolen Hummer Motorcycles.
Further inspection of the property” located at 21 Winston Avenue by virtue of a search warrant revealed a motor vehicle bearing AP 92 TY Toyota Hilux parked in the driveway of 21 Winston Avenue. This vehicle was also registered to the accused. On the rear of this tray of the vehicle was huge carboard boxes containing five Hummer motorcycles unassembled. These boxes were containing five Hummer motorcycles unassembled. These boxes were labelled with chassis and engine numbers matching the stolen bikes. The accused was stopped at the front of his premise at 20 Winston Avenue, Guildford West and spoken to by police. His details were obtained.
The facts go on to indicate that the accused was questioned in relation to the motorbikes. The accused stated that he had purchased the bikes from a guy only known as Tony who lives on a property located on the Northern Road, Narellan. He further stated he paid $88 per bike and an extra $400 for a motorbike engine. He stated he had a receipt for the purchase of the bikes but after many attempts he could not produce any receipt.
The charge sheet indicates that you were in possession or dealing with nine motorbikes, I counted, as well as motorbike parts. Self evidently those motorbikes were found stolen from the back of that truck on 1 September. As I say, you were found in possession of them on 20 September, Each one of those bikes is worth in the region of eleven hundred odd dollars and you were unable to prove you for them lawfully. As I say, the case against you was very strong. You have pleaded guilty and you are entitled to a benefit in regards to that matter.
You have been in trouble for a number of years. You certainly don’t have the worst record I have seen but it’s an unflattering record just the same. You first came before the courts, the juvenile courts in 1986/87 in regards to matters of dishonesty and traffic matters. In 1988 goods n custody. Warrants were issued for your arrest and eventually dealt with in 88 and some of the charges actually were dismissed. Other charges were matters in respect of which you received fines. At Parramatta Local Court in 89 you were sentenced to a term of imprisonment for stealing a car. In 1991 you were fined in regards to a traffic matter. In 1992 for break, enter and steal you were given a deferred traffic matter. In 1992 for break, enter and steal you were given a deferred sentence. In 1993 for assault you were fined. You’ve got other matters on your record through the years, including assault occasioning actual bodily harm, assault police, make false instrument. Imposition, a few counts of imposition, in fact, one, two, three, four counts, more than that, you’ve got seven counts of imposition. In 1994 you were given short Gaol terms. In 1094 however for robbery you were given a fixed term, by the looks of it, of 12 months with a minimum term of three. Anyway you received a gaol term for by the looks of it, armed robbery. In 1005 also for armed robbery you got a four year fixed term with a minimum term of two years and six months. Your record over recent times is not too bad in comparison to what it was like there originally. But this particular matter is indeed very very serious. You’ve also got other matters pending in respect of which you have pleaded not guilty at this stage.
You’ve been the subject of a pre-sentence report which spells out your domestic circumstances, your family history. And Mr Raheb of course has also complimented that in submissions. This matter is much too serious in my view to look at any viable community based options. We’re not dealing with small property items. We’re dealing with nine motorbikes plus motorbike parts that went missing from a container. No too far from where you live incidentally, when you think about it, Guildford. I do recall the circumstances of this case where you even had photographed and certainly video recordings of the search warrant at the hearing prior to you actually pleading guilty to this particular charge.
You are unsuitable for a periodic detention. In my view the matters are much too serious to consider a fine or a good behaviour bond. Particularly having regards to your record.
YOU ARE CONVICTED SENTENCED TO SIXTEEN MONTHS IMPRISONMENT WITH A NON-PAROLE PERIOD OF TWELVE MONTHS.THAT WILL BE BACLDATED TO THE TIME THAT YOU CAME INTO CUSTODY ON 11 AUGUST 2008. YOUR DISCHARGE DATE WILL BE 10 AUGUST 2009 WHEN YOU CAN BE RELEASED ON FOUR MONTHS PAROLE.
THE OTHER MATTER WILL BE PUT OVER TO 21 OCTOBER TO A FIX HEARING DATE.
BAIL IS REFUSED.”[78]
[78] Ibid, G12, Attachment E, pp 172-174.

This was put to the Applicant. He said he knew the property was stolen.
On 18 September 2009, the Applicant was convicted of attempting to dispose of stolen property. He was sentenced to imprisonment of 12 months commencing on 11 August 2009 in concluding on 10 August 2010 with a non-parole period of nine months.[79]
[79] Ibid, G3, Attachment A, p 78.
DCS records for 23 September 2009 state:
“Referred by Area 1 psychologist. Imad presented as calm, slightly anxious, clear in his thinking, cooperative. He states he is taking Avanza for depression but still does not eat or sleep well; has notified clinic for dosage review. He reports that he attempted to hang himself in prison about 2 months ago; placed on MNF. He states he now considers this to have been a foolish act; that he would ask for help if her ever felt the same. He strongly denies any current SSH ideation. However, I note that there are OIMS notes indicating he attempted to hang himself while in prison in 1994. He states he has strong family support as well as visits; attends the call to prayers on Friday; has completed drug awareness program and is starting the Get Smart program. He appears sincere in his decision to address his drug problems, however he did admit to using in prison. I also note that he was exposed to war related trauma in Lebanon and I have recommenced to Iman that he seek further counselling on that issue. At present I consider Imad to be a low risk of SSH and will arrange for a follow up in two weeks. He requested to see me but I advised that might not be possible but would try.”[80]
[80] Exhibit 9, p 78.
On 19 January 2010, the sentence imposed on 18 September was varied to a 12 month suspended sentence and the entering into a bond.[81]
[81] Exhibit 4, G3, Attachment A, p 78.
The decision of the NSW District Court relevantly states:
“HIS HONOUR: Imad Barghachoun appeals against the severity of a sentence imposed upon him at the Liverpool Local Court on 18 September 2009. For ease I shall simply describe the offences of which he was convicted as that of receiving. It was contrary to subs (1) of s 188 of the Crimes Act. The maximum penalty that was available to Her Honour was two years imprisonment. On indictment of course it is an offence which attracts a ten-year maximum penalty. He was sentenced to a non-parole period of nine months and a total sentence of twelve months which sentence was to commence on 11 August 2009. He had been in custody since August 2008 and the sentence that was imposed upon him in relation to the matter that is before me commenced at the expiration of the non-parole period imposed for another offence. It should be notes that the offence was of a like nature to this and played some role in the reasons of her Honour when imposing the sentenced which is now under appeal.
The appellant has a chequered history. He is not forty. He is married, he has two children, one aged sixteen and a child aged four and a half. He has on his record offences of a very serious nature; the last of which involved a significant custodial sentence. He was released to parole in relation to it in 2002 and between then and September 2007 it was clear that he was living a law-abiding life. True enough for two of those years he was on parole which may have been inducement to maintain te straight and narrow but in any event he clearly has been a very hard worker and has got himself appropriate qualifications to ear goof money whilst working, particularly as a crane operator. He has fork lift tickets, he has got a dogman’s ticket, a rigger’s ticket and clearly from the material before me he is a valued employee. I have before me a letter from Mr Gaucci of Stephenson’s Cranes who indicates that there will be work available to him on his release from gaol. I have other material that was before the Magistrate which indicates that subsequent to his release from the prison in 2002 he was a diligent worker which is material that I accept.
He gave evidence before me which indicates that at the time that he committed this crime and in fact at the time that he committed the earlier crime for which he has also been in prison and served a sentence, he was under enormous financial pressure. Without going into the unhappy details, it would appear that one of his brothers took advantage of his ageing parents and took a mortgage over his parent’s home, for whose benefit I am not quite sure, but it would appear to his brother’s benefit. The appellant is the youngest member of a fairly large family. In view of the obligations of trying to repay enormous debts he was working fifteen to sixteen hours a day six to seven days a week, trying to finance those repayments and even though he was earning very good money those efforts proved insufficient to be able to save at least one of the properties which was the subject of a mortgage.
He frankly tells me that at the time he was probably using amphetamines to stay awake to be able to do the work that he was doing, I suspect that it was a crushing burden for him. Whilst the offers some explanation as to why he committed this particular crime and in fact the crime for which he has also served a sentence, It does not represent an excuse and he does not offer it as an excuse. He fully accepts his moral culpability in relation to this matter and I accept that his acceptance of his responsibility and his remorse for them is genuine. I also suspect that he is disappointed in himself for committing these crimes at all. To an extent they seem to be opportunistic in the circumstances in which he found himself, albeit that it involved a degree if organisation to effect the crimes. Nonetheless having read the material he does not appear to have the prime motivator behind what seems to have been a fairly well organised racket of stealing from freight forwarders and the freighting companies. He seems to have been caught in the middle of it. Albeit that his role may have been worse or more serious, the evidence would not suggest that I could conclude that beyond a reasonable doubt, nor could anybody else for that matter.
He has now been in gaol solely in relation to this offence since 11 August 2009, that is just a bit over four months. I also bear in mind in considering this appeal the fate of his co-offenders, From the material that I have read it is hard to distinguish their relative culpability from his culpability. One received a s 9 bond and the other was fined. It would appear that there is a significant inconsistency amongst the sentenced that were imposed for those who participated in this offence. It should be noted however that at the time he committed this offence he was on conditional livery, namely, bail, which is a serious aggravating feature of this crime and he also has, as I have noted previously, a substantial criminal history. Again, I am prepared to conclude that from the time of his released from prison in 2002 he has made decent endeavours to live the life of a law abiding citizen within the community, accepting his responsibility as a father and family man.
What is to be done? I accept in large part what he told me in his evidence, that he accepts not only the stupidity but the criminality of his conduct, but he explains to me the context in which it occurred and I accept what he has to say to me. It seems to me having regard to the sentences that were imposed on his co-offenders, that there is significant disproportions between the sentences imposed upon him and the sentences imposed upon them. I gave a Parker warning in the course of submissions on the basis that the course I propose has the potential at least for a more severe sentence in terms of outcome for this man than that which was imposed by the Magistrate, in that what I propose to do is to send him to gaol for twelve months to date from today but o suspend it upon him entering into a bond pursuant to s 12. That in effect makes him his own gaoler but if he does breach the bond the sentence that he will confront will, in effect, be more severe than the sentence that was imposed by the Magistrate because the four months and elven days or o that he has served in custody in relation to this offence so far will not count against any sentence should he breach the bond. Through his counsel he has indicated that he still wishes to pursue this appeal that warning having been given and accordingly I propose to vary the sentence as I have indicated.
Stand up lease sir. In relation to your appeal it is dismissed. I vary the sentence though to be one of twelve months imprisonment. That sentence is to commence today 19 January 2010 and to expire on 18 January 2011. I suspend the sentence to pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon you entering into a bond in the statutory terms for a period of twelve months. He is subject to the supervision of the New South Wales Probation and Parole Service. To give effect to that conditions he is to report to the officer in charge of the Probation and Parole Service at Fairfield before 4pm on Friday 22 January 2010.
Take a seat sir. Can I tell you this, if you breach this bond you are going to gaol. The five months that you have served in gaol so far does not count, right, this is start again. So if you breach the bond on the last day of the bond, In other words, if you breach the bond 17 January 2011 you are going to gaol and you will go to gaol for up to twelve months, you understand that? It is tour go. If what you told me on your evidence is fair dinkum, you will be right. If you are not fair dinkum bad luck, you miss we hot, simple as that, understand that?
APPELLANT: I appreciate the opportunity your Honour.
HIS HONOUR: Well you go. You will need to be taken back into custody for the time being because the officers have to undertake some administrative detail.”[82]
[82] Ibid, G11, Attachment D, pp 167-171.
DCS records for 15 February 2010 state:
“Offender reported as directed, accompanied by his niece. Commence completing Offender Intake Data Form to obtain information relating to his employment, relationships, mental health and drug and alcohol. Offender acknowledged and signed Release of Information.
EMPLOYMENT: The offender undertook to provide pay slips to verify employment at next contact. He informed that he is sub contracting to Steven Gouchie, BK Constructions and owns a business called IBN Cranes – Metal Fabrication. At the moment, he is reportedly working at his parents’ property. Reported that he is a crane driver by trade.
RELATIONSHIPS: Described himself as single. Noted that the offender has two children Bilal GUNNS (16) and Marian BARGACHOUN (4.5) from separated union. Both children are reportedly in the care of their mothers.
DRUG AND ALCOHOL: The offender informed that he “relapsed” whilst in custody and as a result participated in the Drug Awareness and SMART programs. Given his completion of these programs, the offender does not consider that further intervention is warranted. Perusal of Pre Sentence Report dated 08.10.08 revealed that the offender was abusing methamphetamines for 18 months prior to the offence.
MENTAL HEALTH: Perusal of case notes indicated that the offender was prescribed anti depressant medication during his recent reman period. The offender stated that he was experiencing pressing circumstances at the time. He reportedly ceased the medication 2 months prior to his release. He denied being on any mental health treatment/medication.”[83]
[83] Exhibit 9, p 83.
DCS records for 28 April 2010 state:
“Offender reported as directed. With reference to previous case notes, the offender denied that it was his partner who was having a baby. He described her as a “friend” and stated that it is not his child. He revealed that his father is in hospital due to illness, which eh reported is having a profound negative impact on him.
- Case management interventions were discussed i.e AOD assessment / urinalysis. The offender claims that he is abstinent from illicit substances and is avoiding negative associates. A home visit was scheduled for next contact to fulfil LSIR and CP. Photo was taken for purposes of urinalysis.
- Offender continues to be self employed and sub contracting. He was direction to provide verification of his employment at next appointment.
[84] Ibid, p 85.
- The offender revealed that his former partner Nasiren Amer is restricting him from having contact with his daughter. When questioned, the offender stated that and ADVO has been previously placed against him to protect his former partner. The offender asked about how to go about negotiating with his former partner re contact with his daughter. He was advised to consult with his solicitor and the Family Law Court.”[84]
On 21 May 2010, the Applicant was again advised that his visa may be cancelled on character grounds. After consideration he was issued with another warning in these terms:
“On 21 May 2010 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class BF transitional (permanent) visa will continue to provide you with permission to remain in and re-enter Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard if this warning will weight heavily against you if your case is reconsidered.
Some Australian government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important that you answer these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:
·refusal of entry to Australia;
·refusal of citizenship;
·cancellation of your visa;
·removal from Australia, and
·criminal prosecution.
I, Imad Barghachoun 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 refusal or 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 considered.”[85]
[85] Exhibit 4, G18, Attachment J, pp 205-6.
The Applicant says of this warning:
“In relation to the 2010 warning, I attended the office of my solicitor John B Hajje for approximately half an hour. He told me “you won’t be deported” and made it out like it all a misunderstanding. He never really told me about how serious it was. To me permanent means permanent. I didn’t understand the difference between citizen and permanent resident. I gave him $2000 and I did no really hear from him much after that. I do not recall signing the notice of decision not to cancel my visa.
This time is the only time that I’ve really realise how serious this matter is, and that I can get deported. I realise that this is my last chance. I can’t go back to Lebanon. I will kill myself before I go back there.”[86]
[86] Ibid, G58, Attachment AJ, p 371, paras 36-37.
I note that the Applicant was represented by lawyers at this time and that he made extensive representations through them. He signed an acknowledgement of notice under s501 on 31 August 2010.[87]
[87] Ibid, G68, Attachment AM, pp 601-605 and G69. Attachment AM1, p 606.
DCS records of 9 June 2010 state:
“Offender is subject to a Sec 12 GBB for the offence ‘Attempt/ Dispose property – theft’ for a period of 12 months. The offender has an extensive criminal history and it would appear that although he has been predominantly employed in the community, he continues to offence / engage in criminal behaviour / activity. It has been confirmed that the offender is affiliated with Notorious OMCG via Intel Rpt 0830.10, hence referral to Community Compliance Group (CCG). Offender has little insight / acknowledgement of his substance abuse issues. Given recent urinalysis result, offender is to be directed to engage in AOD assessment / counselling. Although offender’s self-employment / sub contracting is positive, it does not appear to deter him from engaging in anti social behaviour.”[88]
[88] Exhibit 9, p 88.
The Applicant denied any association with those groups but stated that he had previous contact in early 2010 with people who were subsequently called members.[89]
[89] Ibid, p 117.
On 31 March 2012, IAT staff conducted a search on one of the Applicant’s visitor’s, Ms Aislen Brewitt, after there was information that suggested she may have been organised to traffic contraband into the Bathurst Correctional Complex. A NSW Corrective Services report states:
“……
During a search of her handbag a plastic deal bag containing what appears to be crystal residue was located/ I formally cautioned BREWITT and questioned her in relation to the bag. BREWITT stated that the bag contained “crystal meth” that she had used herself.
During further questioning and search of her vehicle, BREWITT stated that she was a friend of BARGHACHOUN’s and admitted to having received $1000 in a bank transfer from BARGHACHOUN. BREWITT was unable to give an explanation as to why she had received this cash.
Bathurst Police attended the centre and conducted further searches. Nothing else was located during these searches.
As per GM Mr Fittler the visit was denied and BREWITT was directed to leave the Gaol grounds. The above incident was recorded via video camera and logged in the IAT Office.”[90]
[90] Ibid, p 414.
On 13 December 2012, the Applicant was convicted of multiple offences associated with an armed robbery. He was sentenced to 8 years and six months imprisonment commencing on 20 August 2013, to conclude on 19 February 2022, with a non-parole period of five years and six months.
The decision of the NSW District Court relevantly states:
“……
Barghachoun and Riley were arrested on 20 August 2011. They have been in custody since that date. When the offences were committed, each was on bail. Barghachoun is yet to be tried for the matter which he was on bail. The matters for which Riley was on bail for were later withdrawn. The sentences imposed upon Barghachoun and Riley should commence on 20 August 2011.
At this point I should acknowledge that the injury suffered by the victim of the truck robbery was a very serious injury. He continues to experience a high level of emotional trauma associated with the offences. Prior to August 2011, he enjoyed his jo. In June 2012, he terminated his employment because it placed him under too much stress. He continues to experience a high level of anxiety and has difficulty finding employment in any aspect of his life. Among other things, he is unable to enjoy the former pleasure of spending time with his children and grandchildren. In the witness box, the victim appeared to be extremely anxious. He was visibly shaking.
The facts of the offences are that, at about 9pm on 19 August 2011, an unmarked Pantech truck left Bankstown with a valuable cargo including mobile telephone handsets and foreign currency. The truck was to drive north along the Pacific Highway to Queensland.
Offences 1 and 2: At about 9:05pm on 19 August, Hussein and Barghachoun entered a service station at Silverwater for the purposes of stealing a vehicle for use in the intended robbery of the truck. They wore hoodie tops that partially concealed their faces. Hussein wore a black and white scarf across this face. He approached the driver of the airport shuttle bus that was located at the petrol pumps. He asked for the keys to the bus. The driver refused and ran into the office of the petrol station. Hussein and Barghachoun then approached the driver of a BMW. Barghachoun asked for the keys to that vehicle. The driver made an excuse and did not provide the keys. Hussein and Barghachoun ran from the service station. Manly had been waiting nearby in his dark blue Subaru WRX vehicle. Hussein and Barghachoun entered Manly’s vehicle.
……
Offence 5: On the northern side of Sydney, possibly in the Pennant Hills area, Riley was picked up. Initially, he may have been in the Many’s vehicle. His backpack was later found in that vehicle. During the journey, possibly just south of Bulahdelah where two vehicles were observed by the highway, Riley entered the stolen vehicle. The jury found that, at a time when he had an opportunity to exit the vehicle., Riley knew the vehicle had been stolen but voluntarily remained as a passenger in the vehicle.
Offence 4: At a highway service station, Hussein and Barghachoun, the occupants of the stolen vehicle, stole number plates from a parked vehicle and attached them to the stolen Mazda for the purpose of disguising the vehicle.
Offence 6 and 7: At about 11:30pm, in the area of roadworks just north of Bulahdelah, the stolen Mazda overtook the Pantech truck, blocked its path, and forced the truck drover to stop the vehicle. Hussein, Barghachoun and Riley were in the stolen Mazda. Hussein exited the stolen Mazda armed with the Browning pistol. He fired a shot at the truck windscreen, striking the passenger side of the windscreen. Hussein walked to the drivers door of the truck brandishing a firearm and indicated that the driver should leave the vehicle. The drover got out of the vehicle. When he began to walk towards the rear of the truck, Hussein fired a shot at the ground and directed the driver to the side of the road near the front of the truck. He indicated that the driver should kneel on the ground. Hussein pushed the firearm into the driver’s back and directed him to remain in a kneeling position. Barghachoun and Riley entered the rear cargo area of the truck. Manly was at least waiting in the vicinity for the purposes of assisting if required.
Offence 8: On two occasions when other motorists stopped their vehicles behind the truck, Hussein fired the pistol at the ground indicating that they should leave.
Offence 10: Barghachoun and Riley drove the Pantech truck north up the highway for a short distance. They then turned off the Pacific Highway and drove towards a waste depot. Inadvertently, they drove the truck into a roadside culvert. Forced into abandon the truck, they walked a considerable distance through bushland south towards Bulahdelah. On the northern side of Bulahdelah, they came to a sawmill. They stole a bus belonging to the sawmill, which they drove north east to the Forster area. At about 3am on 20 August, police arrested them. When he was taken into police custody, Barghachoun appeared to be withdrawing from the heroin use.
Offence 9: After the truck robbery, Hussein and Manly returned to the town of Bulahdelah. A about midnight, one of them set fire to the Mazda vehicle. It was destroyed. Hussein and Manly entered Manly’s vehicle and drove around Bulahdelah for some time, hoping to rendezvous with Barghachoun and Riley. Eventually, they left the Bulahdelah area.
Barghachoun
The offender was forty-two years old at the date of the offences. He has a long criminal history including offences of armed robbery in 1994. The cumulative effect of the sentences imposed for those offences was that Barghachoun was in prison for seven years from January 1995 to January 2002, after which he served an additional term of two years and six months in the community. There was a break of offending behaviour until 2007, whether the offences for deal with property suspected proceeds of crime, he received a sixteen month sentence with a twelve month non-parole period from 11 August 2008 to 10 August 2009. For an offence of attempt to dispose of property, he received a twelve month suspended sentence from 19 January 2010. During period of incarceration, the offender committed a number of prison offences including offences relate to illicit drug use.
Counsel for Barghachoun submitted that there were reasonable prospects of rehabilitation in that the offender had informed his niece that he wanted to address his drug abuse problem. In the face of an apparently entrenched drug addition that seemingly continued during periods of incarceration, a stated intention to reform is no evidence that there are reasonable prospects of doing so. On the other hand, the lack of criminal activity during the period of 2002 to 2007 is some evidence that the offender is capable of remaining crime-free for an extended period.
All offences committed by Barghachoun prior to the truck robbery were part of a plan o rob the truck. They were not committed impulsively. Barghachoun was very much involved in the planning. From the outset, he was a participant. He made many telephone calls to other participants. Offence 1 and 2 were committed in company. For that reason, they were potentially more frightening from the victim’s perspective. As it transpired, neither victim was sufficiently intimidated to surrender his car keys. Barghachoun and Hussein were disguised by the hoodies that they wore. In relation to offence 3, Barghachoun was not the principal offender. He is guilty because he was part of the joint criminal enterprise. Although, he was involved in planning the robbery, it was probably very last minute planning necessitated by the failure of offences 1 and 2. He was present at the scene of the robbery, inferentially a matter of metres away from Hussein. He was available to assist Hussein.
Offence 4 was a relatively minor matter.
Offence 6 was an objectively serious armed robbery. It was planned. The Pantech truck was unmarked and carried a valuable cargo. The offenders must have been aware of the cargo and targeted the truck because of the cargo that it was carrying. The offenders were prepared to drive a considerable distance up the Pacific Highway to rob the particular truck. Some hours before the robbery, they attempted to steal a vehicle for use in the robbery. As they travelled up the highway, they maintained telephone contact. The offence was committed in company. The truck driver was aware that Hussein was accompanied by at least two other people.
The prosecutor relies on s 21A(2)(g) and submits that the emotional harm to the driver was significantly worse than one would expect from an offence of this nature. I accept that the driver suffered very serious emotional harm However, the offence was very serious. In the absence of exert evidence, I am not satisfied beyond reasonable doubt that the emotional harm that the driver suffered was significantly worse than one would ordinarily expect for an offence of this nature.
Other relevant aggravative features under s 21A(2) are the fact that the offender a on conditional liberty (bail) at the time he committed all the offences. He has a record of previous convictions for offences of the same nature, i.e. serious offences of dishonesty.
Offence 10 was unplanned. Presumably the offenders did not intend to lodge the truck in the culvert. Offence 10 was an opportunistic offence. Having walked a considerable distance through bushland, the offences came upon the sawmill bus.
……
Mr Barghachoun, you are convicted of the offences that I have numbered 1,2,3,4,6 and 10. Starting with offence 10, the theft of the Mazda bus, you are sentenced to a fixed term of imprisonment of two years and six months from 20 August 2011 to 19 February 2014. For offences 1 and 2, I impose concurrent sentences of the same length. For each offence you are sentenced to a fixed term of imprisonment of two years from 20 August 2021 to 19 August 2014. In relation to offence 3, the armed robbery of Mr Bakhri, you are sentenced to a fixed term of imprisonment of six years from 20 August 2012 to 19 August 2018. In relation to offence 4, the theft of the number plates, you are sentenced to 12 months imprisonment from 20 August 2011 to 19 August 2013. In relation to the principal matter, the armed robbery of the truck driver, you are sentenced to a non-parole period of five and a half years from 20 August 2013 to 19 February 2019. I impose a balance of term of three years, making a total sentence of eight and a half years.
The effective sentence that I have imposed is a sentence of ten and a half years with a seven and a half year non-parole period. You will be eligible for release to parole on 19 February 2019. In imposing this sentence I have taken into account the special circumstances of your need for lengthy period of supervision upon your release to integrate into the community, address institutionalisation and address long standing substance abuse issue.”[91]
[91] Exhibit 4, G10, Attachment C, pp 156-165, paras 3-6, 8-22 and 29-30.

The Tribunal is accordingly bound to comply with any such direction.
The currently applicable direction is Direction 90.
Under the heading of “other considerations”, Direction 90 provides as follows:
9. Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
9.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non refoulement obligations.
9.2 Extend of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
9.2.1.1.1(a) the non-citizen's age and health;
9.2.1.1.2(b) whether there are substantial language or cultural barriers; and
9.2.1.1.3(c) any social, medical and/or economic support available to them in that country.
9.2.1.1.4
A claim by the Applicant of harm or disadvantage that is not found to come within Clause 9.1 may nevertheless be relevant to Clause 9.2. It is also to be noted that “other considerations” are stated to” include (but not be limited to)” the specific considerations set out in Clauses 9.1 to 9.4.2. This may be relevant in some cases.
Given that Direction 90 is made under the Act, unless there is express reason to do otherwise,[142] it should be interpreted in a way that is consistent with the Act as a whole. In this context, it is also relevant to have regard to other provisions of the Act.[143]
[142] The Minister has given “directions that would be inconsistent with this Act or regulations” contrary to S 499 (2).
[143] Sections 5H, 5J, 5K, 5L, 5LA, 36, 91R (3), 197C, & 198 of the Act.
The relevant date at which to make an assessment of the Applicant’s status is the time at which the decision is made, not at any earlier time. In this instance, that is July 2022.[144]
[144] MIEA V Singh (1997) FCR 288.
The task of the Tribunal is:
“Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J.”[145]
[145] Minister for Home Affairs v Omar (2019) FCAFC 188 at [39].
This issue has been the subject of recent High Court consideration in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. In that case the majority of the Court said[146]:
“36. The Delegate was required to read, identify, understand and evaluate the plaintiff's representations. The Delegate's reasons record that they did so. The Delegate accurately identified that the plaintiff's representations raised a potential breach of Australia's non-refoulement obligations but said that it was unnecessary to determine whether non-refoulement obligations were owed in respect of him because he was able to make an application for a protection visa, "in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing that application". The Delegate decided not to bring the plaintiff's representations in relation to non-refoulement to account (in the sense of giving weight to them and balancing them against other factors) in making the Non-Revocation Decision, reasoning that a protection visa application was "the key mechanism provided for by the [Migration Act] for considering claims by a non-citizen that they would suffer harm if returned to their home country". That approach was not inevitable, but it was not erroneous.
37. Contrary to the plaintiff's submissions, the Delegate's reasons do not reflect a misunderstanding of the operation of the Migration Act. For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
38. The Court is not "astute to discern error" in the reasons of an administrative decision-maker73 . The Delegate's reasons convey that the Delegate had read and understood the plaintiff's claim and proceeded on the basis that non-refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non-refoulement obligations as "another reason" for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness.
39. Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked.
40. Here, the reasons record the Delegate's consideration of the issues of fact presented by the plaintiff's non-refoulement claims. The Delegate stated that they had considered the plaintiff's "claims of harm upon return to [South] Sudan outside the concept of non-refoulement and the international obligations framework" and that they accepted that, "regardless of whether [the plaintiff's] claims [were] such as to engage non-refoulement obligations, [the plaintiff] would face hardship arising from tribal conflicts were he to return to [South] Sudan". The harm, which formed the basis of his non-refoulement claims, was that if he was returned to South Sudan he faced persecution, torture and death. In concluding that they were not satisfied that there was another reason to revoke the Cancellation Decision, the Delegate stated that they had "considered all relevant matters including ... an assessment of the representations received in relation to the invitation for the purposes of s 501CA(4)(a)". The Delegate concluded that the plaintiff represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed both the interests of his children and "other countervailing considerations", which would include the hardship identified by the Delegate.”
[146] Gageler J substantially agreed with the majority, being Kiefel CJ, Keane J, Gordon J and Steward J.
I have come to the view that in this case, the Tribunal is faced with untestable assertions regarding the Applicant’s likely treatment upon return to Lebanon. I am unable to be satisfied that the Applicant is personally owed any such obligations by reason of his personal circumstances, as opposed to general conditions applicable to other citizens of Lebanon. I am in no position to adequately assess these assertions.
I note that the Applicant has not sought a protection visa. The Tribunal has considered the possibility of indefinite detention as one possible outcome. At this stage, particularly in the absence of an application for a protection visa ever having been made, I consider such a possibility to be contingent upon the outcome of possible future events. To assess the possibility of such an outcome at present, would be an exercise in speculation.
I consider that the Applicant has “raised a potential breach of Australia's non-refoulement obligations” but, applying the reasoning in Plaintiff M1 (above), I have formed the view that it is “unnecessary to determine whether non-refoulement obligations (are) owed in respect of him because he (is) able to make an application for a protection visa”. Having regard to the Applicant’s submissions and the decision in Plaintiff M1 (above), I do “not give weight to potential non-refoulment obligation as another reason” for revoking the Cancellation Decision.
This consideration is neutral, for the reasons set out above.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant says;
“……
I cannot speak Arabic and I know no one in Lebanon. I am afraid I will be targeted because I am a foreigner. I will have no house, nowhere to go and no licence to work. I am afraid that I will re experience events that caused my PTSD. I am afraid my PTSD will get worse. I will commit suicide if I have to go back to Lebanon.
I do not speak Arabic, I know no one, I have no licence to work over there, I will commit suicide if I am deported.
I am an Australian. I have grown up in Australia. I did not realise the difference between permanent resident & citizen. I do not have a passport and I have not been back to Lebanon since I left there when I was 13 years old. In my mind permanent meant permanent. Australia is my life and I have no life in Lebanon. Please see attached my statutory declaration for further information.
……
Passport
Our client does not hold any Passport or travel document. Advice from the Lebanese Consulate is this is not an impediment removal.
Hardship in sending him to Lebanon and suicide risk
Our client is now 44 years old who grew up in Australia. He never left New South Wales since he was 10 years old.[147] He has never returned to Lebanon and has no assets or contacts in Lebanon. He does not know anyone in Lebanon. This will make the move to Lebanon difficult. Our client is not fluent in Lebanese or French, the national languages of Lebanon.
We asked our client about a possible return to Lebanon. On one occasion he said “I don’t want to talk about that. What the fuck would I do in Lebanon.
He also said “if they force me to go back to Lebanon, I will kill myself”.
The VOTP makes a number of recommendations for our client’s maintenance. A lot of these services require a knowledge of available services. Our client is aware of these services in Australia but is not aware of equivalent services in Lebanon.
The VOTP expressed concerns our client was reluctant to plan for his transition to Lebanon and preferred to plan for his transition to Australia. The investigation team believes our client is at an elevated risk of suicide if deported.
We submit our client requires a high level of support and care from social and medical services if returned to Lebanon.
Our client feels it is duty to look after his daughter. He previously supported his daughter financially before the 2011 offence.
We have earlier pointed out the risk of extortion, kidnapping, and ransom by armed militants looking to exploit an Australian resident or extort money from his Australian family.
Our client will not benefit from social assistance and post release services. His transition from jail to Lebanon, a country he is unfamiliar, will be a difficult one . It would require he overcome institutionalization in a foreign country that is struggling with a refugee crisis and a civil conflict. There will be no recognition of the fact that he has recently been release from prison. As we have earlier quoted, the denial of these services will adversely affect the wellbeing of our client. The effect of the Minister’s decision will be to bar our client’s attempts at reintegration into any society.”[148]
[147] Actually 13 years old.
[148] Exhibit 4, G59, Attachment AJ1, pp 382-3883 and G60, Attachment AJ2, pp 453-454.
It is interesting to note that the Applicant claims not to speak Arabic. It is clear from the materials in this matter that communication with his relatives, particularly his mother, has always been in Arabic. This statement is self-serving and literally untrue.
The Applicant is 53 years of age and is in good physical health. He does have an inadequately documented history of mental health issues. A lack of expert evidence on this topic makes assessment more difficult. He has reported making attempts on his life in the past. He has reported that he suffers from PTSD. He has been taking prescription medications to manage his condition. I am certain that the Applicant’s access to mental health services in Lebanon would be much poorer than in Australia. This is a significant consideration.
He does have work skills that would be readily translatable to construction work in Lebanon. I note that the economic conditions in Lebanon are dire at present and that the Applicant may struggle to get paid work.
The Applicant has a history of drug use and addiction. A return to Lebanon may expose him to a greater risk of drug use and would afford him much less chance of receiving satisfactory addiction treatment services, than would be the case here.

The Applicant has lived in Australia since he was 13 years of age. He did attend school in Lebanon and speaks the language. He is familiar with the culture. Prison records confirm that he has remained an observant Moslem. This has been also demonstrated by his past religious marriages in the Islamic tradition. There would nevertheless be significant adjustment issues for the Applicant if he were to return to Lebanon.
The Applicant’s immediate family and supports are in Australia. The Applicant would struggle with social, medical and economic support in Lebanon. He may be dependent on money from family in Australia, at least for a time. He would need to take care that he lived in parts of the country that exposed him to the smallest risk of harm due to internal political and social strife.
This consideration is weighs heavily in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence on this other consideration.
This Other Consideration (c) is neutral
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has lived here since he was 13 years of age. I note that the Applicant’s offending began very soon after his arrival in Australia and that it has continued. He has spent some periods being employed and paying taxes but on balance, his contribution to the Australian Community has been overwhelmingly negative. He has engaged in serious criminal conduct over a prolonged period he has consumed scarce resources in the NSW Corrections system, literally for years. He has been a significant net burden on the community.[149]
[149] I note the Applicant’s submissions at Exhibit 4, G60, Attachment AJ2, pp 448-451.
On the other hand, the Applicant has virtually all of his extended family connections here. He has two biological children, he has a current partner and her children. His links to the Australian community are deep. He says that he regards himself as an Australian.
In this case, Other Consideration 9.4.1(2) (a) weighs against revocation and 9.4.1 (2) (b) weighs in favour of revocation.
This Other Consideration (d), paragraph 9.4.1 of the Direction, on balance weighs in favour of revocation.
Impact on Australian business interests
There was no evidence on this other consideration, so this is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral.
(b)extent of impediments if removed: weighs heavily in favour of revocation.
(c)impact on victims: neutral
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and
(e)the impact on Australian business interests neutral
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs very heavily against revocation.
Primary consideration 2 weighs is neutral.
Primary consideration 3 weighs slightly in favour revocation.
Primary consideration 4 weighs very heavily against revocation.
Other considerations, (a) and (c) and (e) are neutral.
Other consideration (b) and (d) weigh in favour of revocation.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

.....................[sgnd]..................................
Legal Associate

Dated:   08 August 2022

Date of hearing: 25 & 26 July 2022

Advocate for the Applicant:

Dr Jason Donnelly
Latham Chambers

Advocate for the Respondent:
Mr Jonathon Hutton
Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues, and Contentions dated 27 June 2022

2

Applicant

Supplementary Contentions dated 15 July 2022

3

Respondent

Statement of Facts, Issues, and Contentions dated 19 July 2022

4

Respondent

G-Documents

5

Applicant

Bundle of Statements:

1.    Statement of Imad Barghachoun

2.    Statement of Souraya Ramadan

6

Applicant

Tender Bundle Part 1 (Pages 1-89)

7

Applicant

Bundle of Statements

1.    Statement of Abdul Zaoud

2.    Statement of Dob Barghachoun

3.    Statement of Fouadi Chaouk

4.    Statement of Janet Pritchard

5.    Statement of Mariam Barghachoun

6.    Statement of Nasiren Amer

7.    Statement of Randa Chaowk

8.    Statement of Samer Ibrahim

8

Applicant

Tender Bundle Part 2 (Pages 1-192)

9

Respondent

Tender Bundle (Pages 1-710)

10

Respondent

Table of Applicant’s Terms of Imprisonment, Parole and Immigration Detention

11

Respondent

Data Breach Notification Letter

Annexure B – Table of Imprisonment, Parole and Immigration Detention

Commenced

Concluded

Event

26 September 1988

4 October 1988

Remand

4 October 1988

23 March 1989

Recognisance order

23 March 1989

1 November 1989

Term of imprisonment

1 November 1989

June 1990

Parole

December 1992

September 1994

Recognisance order

3 May 1994

31 October 2002

Remand and term of imprisonment

31 October 2002

30 June 2004

Parole

12 August 2008

19 January 2010

Term of imprisonment

19 January 2010

18 January 2011

Good behaviour bond: 12 months

11 November 2010

24 November 2010

Remand, awaiting court date

11 November 2010

Bail

21 August 2011

19 February 2017

Term of imprisonment

19 February 2017

Parole

10 January 2020

27 March 2020

Remand

27 March 2020

To-date

Immigration detention

Annexure C – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Minda Children’s Court

20/08/1986

4. Make False Representation

$50

Minda Children’s Court

20/08/1986

3.Take & Drive Conveyance Without Consent (2 Counts)

1 2 & 3. On each charge admon & disc

Minda Children’s Court

20/08/1986

2.Make False Representation

1 2 & 3. On each charge admon & disc

Minda Children’s Court

20/08/1986

1.Frauduently Use Lic (2 Counts)

1 2 & 3. On each charge admon & disc

Paramatta Local Court

04/07/1988

BE&S

1.recog S558 self $500 GB 3 Years also fined $300

Ryde Local Court

08/11/1988

Not wear Helmet (FIW)

Charged and fined $70

Ryde Local Court

08/11/1988

UNINS (FIW)

Charged and fined $70

Ryde Local Court

08/11/1988

Carry Pillion Passenger (FIW)

Charged and fined $70

Ryde Local Court

08/11/1988

Unreg (FIW

Charged and fined $70

Ryde Local Court

08/11/1988

FTA (MINDA 110387) (FIW)

Charged and fined $100

Ryde Local Court

08/11/1988

FTA (PARRAMATTA 170288) (FIW)

Charged and fined $100

Paramatta Local Court

22/03/1989

Steal MV

2 years HL Non-Probation Period o12 Months

Waverly Local Court

17/07/1991

Drive Whilst Canc (Replaced by charge of drive whilst disq) 1. Drive whilst Disq 2. Unreg Vehicle 3. Unins vehicle

1.    Fined $750 – Licenced Disqualified for 6 months

2 & 3. On each charge fined $250

Paramatta Local Court

17/12/1992

1.BE&S

Sentence Deferred Enter Recog Self $1000 GB3 YRS Supv Community Correction Service

Paramatta Local Court

08/03/1993

4.Neg Drive

2 3 & 4 on each charge fined $100

Paramatta Local Court

08/03/1993

3.Off Lang

2 3 & 4 on each charge fined $100

Paramatta Local Court

08/03/1993

2.Resist Arrest (3 Counts)

2 3 & 4 on each charge fined $100

Paramatta Local Court

08/03/1993

1.Assault Police (3 Counts)

1. on each count fined $400

Paramatta Local Court

29/10/1993

1.Assault S61

1. fined $500

Paramatta Local Court

18/03/1994

1.Receiving (2 Counts)

1. on each count fined $1000

St James Local Court

01/06/1994

4.Imposition (3 Counts)

On each count fixed term 2

St James Local Court

01/06/1994

3.Imposition

On each count fixed term 2 months from 010694 reparation $1350

St James Local Court

01/06/1994

2. Imposition

2. Fixed term 4 months from 011294

St James Local Court

01/06/1994

1.Imposition

1. Fixed term 6 months from 010694 reparation $3960

St James Local Court

01/06/1994

Imposition on Commonwealth (6 Charges)

Charge 1: Convicted, sentenced to 8 months imprisonment to be released after serving 6 months

Charge 2: Convicted, sentenced to 6 months imprisonment to be released after serving 4 months

Charge 3: imprisonment 3 months. Pay reparation $1,350

Charge 4: imprisonment 3 months. Pay reparation $1,920

Charge 5: imprisonment 3 months. Pay reparation $640

Charge 6: imprisonment 2 months

Campbelltown District Court

03/02/1995

Indicted for 1. Steal MV 2. Armed Robbery

1.    Fixed term 12 months from 010195

2.    Min term 3 years from 010195 and term 1 year

Bankstown Local Court

21/02/1995

3. Possn Unlic Revolver

2&3 on each count charge adj gen

Bankstown Local Court

21/02/1995

2.ABOABH

2&3. On each charge adj gen

Lithgow Local Court

11/05/1995

3.Use False Instrument (S80AA Warrant) (By Summon)

1 2 & 3. On each charge 12 months imp

Lithgow Local Court

11/05/1995

2.Make False Instrument (S80AA Warrant) (By Summon)

1 2 & 3. On each charge 12 months imp

Lithgow Local Court

11/05/1995

1.Stealing (S80AA Warrant) (By Summon)

1 2 & 3. On each charge 12 months imp

Liverpool District Court

01/09/1995

Indicted for 1. Robbery being Armed 2. Robbery being Armed

1.Fixed term 4 years from 010198 (appealed) 2. Min term 4 year from 010198 add term 2 years 6 months release, subject to supervision

Court of Criminal Appeal Court

23/10/1995

Application for Leave to Appeal Conv & Severity of Sentence 030295

Ordered that the appeal be dismissed

Goulburn Local Court

22/02/1996

1.ABOABH

1. fixed term 4 months from 220296

Court of Criminal Appeal Court

12/03/1998

App for Leave to Appeal Conv & Severity of Sentence 010995

And has ordered that appeal conviction dismissed appeal against sentence not pressed but dismissed

Fairfield Local Court

08/10/2008

Deal with property suspected proceeds of crime

Imprisonment: 16 months commencing 11/08/2008 non parole period with conditions: 12 months release subject to supervision

Liverpool Local Court

18/09/2009

Attempt dispose property-theft=serious indictable > $5000-T1

Imprisonment: 12 months commencing 11/08/2009 concluding 10/08/2010 – non parole period conditions

Campbelltown District Court

19/01/2010

Attempt dispose property-theft=serious indictable > $5000-T1

Convicted: imprisonment 12 months suspended on enter bond S12 – 12 months supv NSW prob service

Sydney District Court

13/12/2012

Larceny value >$15000-T1

Indicted for imprisonment: 2 years commencing, 20/08/2012; concluding 19/08/2014

Sydney District Court

13/12/2012

Larceny value >$15000-T1

Indicted for imprisonment: 2 years commencing, 20/08/2012; concluding 19/08/2014

Sydney District Court

13/12/2012

Robbery while armed with dangerous weapon-SI

Imprisonment of 2 years 6 months

Sydney District Court

13/12/2012

Take & drive conveyance w/o consent of owner- T2

Imprisonment of 12 months

Sydney District Court

13/12/2012

Larceny value >$2000-T2

Imprisonment of 12 months

Sydney District Court

13/12/2012

In company rob while armed with dangerous weapon-SI

Imprisonment of 8 yeas 6 months – non parole period with conditions: 5 years 6 months

Parramatta District Court

28/03/2013

Take/detain person w/i to obtain advantage occasion abh-SI

Indicted for not guilty by verdict

Parramatta District Court

28/03/2013

Take/detain person w/i to obtain advantage-SI

Indicted for not guilty by verdict

Court of Criminal Appeal Court

17/04/2014

Take & drive conveyance w/o consent of owner- T2

Ordered that appeal dismissed

Court of Criminal Appeal Court

17/04/2014

Larceny value >$2000-T2

Ordered that appeal dismissed

Court of Criminal Appeal Court

17/04/2014

Larceny value >$15000-T1

Ordered that appeal dismissed

Court of Criminal Appeal Court

17/04/2014

Larceny value >$15000-T1

Ordered that appeal dismissed

Court of Criminal Appeal Court

17/04/2014

Robbery while armed with dangerous weapon-SI

Order that leave to appeal granted – appeal allowed – sentence quashed

Court of Criminal Appeal Court

17/04/2014

In company rob while armed with dangerous weapon-SI

Order that leave to appeal granted – appeal allowed – sentence quashed; in lieu imprisonment: 6 years with non parole period conditions: 3 years and 6 months

Waverley Local Court

10/08/2016

Inmate possess mobile phone/SIM card etc

Imprisonment: 2 weeks

Downing Centre District Court

17/10/2016

Inmate possess mobile phone/SIM card etc

Order varied: imprisonment: 2 weeks

Blacktown Local Court

12/06/2020

Dishonestly obtain property by deception- T1

Pending Court Appearance

Blacktown Local Court

12/06/2020

Dishonestly obtain property by deception- T1 (48 Attempt)

Pending Court Appearance

Blacktown Local Court

12/06/2020

Dishonestly obtain property by deception- T1 (48 Attempt)

Pending Court Appearance

Blacktown Local Court

12/06/2020

Dishonestly obtain property by deception- T1

Pending Court Appearance

Blacktown Local Court

12/06/2020

Knowingly/recklessly direct criminal group assist crime- T1

Pending Court Appearance

Blacktown Local Court

12/06/2020

Take prt supply prohibited drug <=small quantity- T2

Pending Court Appearance

Penrith Local Court

15/12/2020

Deal with property proceeds of crime <$100000-T2 (Attempt)

Taken into account on Form 1

Penrith Local Court

15/12/2020

Deal with property proceeds of crime <$100000-T2 (Attempt)

Taken into account on Form 1

Penrith Local Court

15/12/2020

Deal with property proceeds of crime <$100000-T2 (Attempt)

Fine: $1,200 Community Correction Order: 3 years commencing 15/12/2020 concluding 14/12/2023

Penrith Local Court

15/12/2020

Deal with property proceeds of crime <$100000-T2 (Attempt)

Fine: $1,200 Community Correction Order: 3 years commencing 15/12/2020 concluding 14/12/2023

[2022] AATA 2492

8 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	25 & 26 July 2022
Advocate for the Applicant:	Dr Jason Donnelly Latham Chambers
Advocate for the Respondent:	Mr Jonathon Hutton Australian Government Solicitor

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues, and Contentions dated 27 June 2022
2	Applicant	Supplementary Contentions dated 15 July 2022
3	Respondent	Statement of Facts, Issues, and Contentions dated 19 July 2022
4	Respondent	G-Documents
5	Applicant	Bundle of Statements: 1. Statement of Imad Barghachoun 2. Statement of Souraya Ramadan
6	Applicant	Tender Bundle Part 1 (Pages 1-89)
7	Applicant	Bundle of Statements 1. Statement of Abdul Zaoud 2. Statement of Dob Barghachoun 3. Statement of Fouadi Chaouk 4. Statement of Janet Pritchard 5. Statement of Mariam Barghachoun 6. Statement of Nasiren Amer 7. Statement of Randa Chaowk 8. Statement of Samer Ibrahim
8	Applicant	Tender Bundle Part 2 (Pages 1-192)
9	Respondent	Tender Bundle (Pages 1-710)
10	Respondent	Table of Applicant’s Terms of Imprisonment, Parole and Immigration Detention
11	Respondent	Data Breach Notification Letter

Commenced	Concluded	Event
26 September 1988	4 October 1988	Remand
4 October 1988	23 March 1989	Recognisance order
23 March 1989	1 November 1989	Term of imprisonment
1 November 1989	June 1990	Parole
December 1992	September 1994	Recognisance order
3 May 1994	31 October 2002	Remand and term of imprisonment
31 October 2002	30 June 2004	Parole
12 August 2008	19 January 2010	Term of imprisonment
19 January 2010	18 January 2011	Good behaviour bond: 12 months
11 November 2010	24 November 2010	Remand, awaiting court date
11 November 2010	Bail
21 August 2011	19 February 2017	Term of imprisonment
19 February 2017	Parole
10 January 2020	27 March 2020	Remand
27 March 2020	To-date	Immigration detention

Court	Court Date	Offence	Court Result
Minda Children’s Court	20/08/1986	4. Make False Representation	$50
Minda Children’s Court	20/08/1986	3.Take & Drive Conveyance Without Consent (2 Counts)	1 2 & 3. On each charge admon & disc
Minda Children’s Court	20/08/1986	2.Make False Representation	1 2 & 3. On each charge admon & disc
Minda Children’s Court	20/08/1986	1.Frauduently Use Lic (2 Counts)	1 2 & 3. On each charge admon & disc
Paramatta Local Court	04/07/1988	BE&S	1.recog S558 self $500 GB 3 Years also fined $300
Ryde Local Court	08/11/1988	Not wear Helmet (FIW)	Charged and fined $70
Ryde Local Court	08/11/1988	UNINS (FIW)	Charged and fined $70
Ryde Local Court	08/11/1988	Carry Pillion Passenger (FIW)	Charged and fined $70
Ryde Local Court	08/11/1988	Unreg (FIW	Charged and fined $70
Ryde Local Court	08/11/1988	FTA (MINDA 110387) (FIW)	Charged and fined $100
Ryde Local Court	08/11/1988	FTA (PARRAMATTA 170288) (FIW)	Charged and fined $100
Paramatta Local Court	22/03/1989	Steal MV	2 years HL Non-Probation Period o12 Months
Waverly Local Court	17/07/1991	Drive Whilst Canc (Replaced by charge of drive whilst disq) 1. Drive whilst Disq 2. Unreg Vehicle 3. Unins vehicle	1. Fined $750 – Licenced Disqualified for 6 months 2 & 3. On each charge fined $250
Paramatta Local Court	17/12/1992	1.BE&S	Sentence Deferred Enter Recog Self $1000 GB3 YRS Supv Community Correction Service
Paramatta Local Court	08/03/1993	4.Neg Drive	2 3 & 4 on each charge fined $100
Paramatta Local Court	08/03/1993	3.Off Lang	2 3 & 4 on each charge fined $100
Paramatta Local Court	08/03/1993	2.Resist Arrest (3 Counts)	2 3 & 4 on each charge fined $100
Paramatta Local Court	08/03/1993	1.Assault Police (3 Counts)	1. on each count fined $400
Paramatta Local Court	29/10/1993	1.Assault S61	1. fined $500
Paramatta Local Court	18/03/1994	1.Receiving (2 Counts)	1. on each count fined $1000
St James Local Court	01/06/1994	4.Imposition (3 Counts)	On each count fixed term 2
St James Local Court	01/06/1994	3.Imposition	On each count fixed term 2 months from 010694 reparation $1350
St James Local Court	01/06/1994	2. Imposition	2. Fixed term 4 months from 011294
St James Local Court	01/06/1994	1.Imposition	1. Fixed term 6 months from 010694 reparation $3960
St James Local Court	01/06/1994	Imposition on Commonwealth (6 Charges)	Charge 1: Convicted, sentenced to 8 months imprisonment to be released after serving 6 months Charge 2: Convicted, sentenced to 6 months imprisonment to be released after serving 4 months Charge 3: imprisonment 3 months. Pay reparation $1,350 Charge 4: imprisonment 3 months. Pay reparation $1,920 Charge 5: imprisonment 3 months. Pay reparation $640 Charge 6: imprisonment 2 months
Campbelltown District Court	03/02/1995	Indicted for 1. Steal MV 2. Armed Robbery	1. Fixed term 12 months from 010195 2. Min term 3 years from 010195 and term 1 year
Bankstown Local Court	21/02/1995	3. Possn Unlic Revolver	2&3 on each count charge adj gen
Bankstown Local Court	21/02/1995	2.ABOABH	2&3. On each charge adj gen
Lithgow Local Court	11/05/1995	3.Use False Instrument (S80AA Warrant) (By Summon)	1 2 & 3. On each charge 12 months imp
Lithgow Local Court	11/05/1995	2.Make False Instrument (S80AA Warrant) (By Summon)	1 2 & 3. On each charge 12 months imp
Lithgow Local Court	11/05/1995	1.Stealing (S80AA Warrant) (By Summon)	1 2 & 3. On each charge 12 months imp
Liverpool District Court	01/09/1995	Indicted for 1. Robbery being Armed 2. Robbery being Armed	1.Fixed term 4 years from 010198 (appealed) 2. Min term 4 year from 010198 add term 2 years 6 months release, subject to supervision
Court of Criminal Appeal Court	23/10/1995	Application for Leave to Appeal Conv & Severity of Sentence 030295	Ordered that the appeal be dismissed
Goulburn Local Court	22/02/1996	1.ABOABH	1. fixed term 4 months from 220296
Court of Criminal Appeal Court	12/03/1998	App for Leave to Appeal Conv & Severity of Sentence 010995	And has ordered that appeal conviction dismissed appeal against sentence not pressed but dismissed
Fairfield Local Court	08/10/2008	Deal with property suspected proceeds of crime	Imprisonment: 16 months commencing 11/08/2008 non parole period with conditions: 12 months release subject to supervision
Liverpool Local Court	18/09/2009	Attempt dispose property-theft=serious indictable > $5000-T1	Imprisonment: 12 months commencing 11/08/2009 concluding 10/08/2010 – non parole period conditions
Campbelltown District Court	19/01/2010	Attempt dispose property-theft=serious indictable > $5000-T1	Convicted: imprisonment 12 months suspended on enter bond S12 – 12 months supv NSW prob service
Sydney District Court	13/12/2012	Larceny value >$15000-T1	Indicted for imprisonment: 2 years commencing, 20/08/2012; concluding 19/08/2014
Sydney District Court	13/12/2012	Larceny value >$15000-T1	Indicted for imprisonment: 2 years commencing, 20/08/2012; concluding 19/08/2014
Sydney District Court	13/12/2012	Robbery while armed with dangerous weapon-SI	Imprisonment of 2 years 6 months
Sydney District Court	13/12/2012	Take & drive conveyance w/o consent of owner- T2	Imprisonment of 12 months
Sydney District Court	13/12/2012	Larceny value >$2000-T2	Imprisonment of 12 months
Sydney District Court	13/12/2012	In company rob while armed with dangerous weapon-SI	Imprisonment of 8 yeas 6 months – non parole period with conditions: 5 years 6 months
Parramatta District Court	28/03/2013	Take/detain person w/i to obtain advantage occasion abh-SI	Indicted for not guilty by verdict
Parramatta District Court	28/03/2013	Take/detain person w/i to obtain advantage-SI	Indicted for not guilty by verdict
Court of Criminal Appeal Court	17/04/2014	Take & drive conveyance w/o consent of owner- T2	Ordered that appeal dismissed
Court of Criminal Appeal Court	17/04/2014	Larceny value >$2000-T2	Ordered that appeal dismissed
Court of Criminal Appeal Court	17/04/2014	Larceny value >$15000-T1	Ordered that appeal dismissed
Court of Criminal Appeal Court	17/04/2014	Larceny value >$15000-T1	Ordered that appeal dismissed
Court of Criminal Appeal Court	17/04/2014	Robbery while armed with dangerous weapon-SI	Order that leave to appeal granted – appeal allowed – sentence quashed
Court of Criminal Appeal Court	17/04/2014	In company rob while armed with dangerous weapon-SI	Order that leave to appeal granted – appeal allowed – sentence quashed; in lieu imprisonment: 6 years with non parole period conditions: 3 years and 6 months
Waverley Local Court	10/08/2016	Inmate possess mobile phone/SIM card etc	Imprisonment: 2 weeks
Downing Centre District Court	17/10/2016	Inmate possess mobile phone/SIM card etc	Order varied: imprisonment: 2 weeks
Blacktown Local Court	12/06/2020	Dishonestly obtain property by deception- T1	Pending Court Appearance
Blacktown Local Court	12/06/2020	Dishonestly obtain property by deception- T1 (48 Attempt)	Pending Court Appearance
Blacktown Local Court	12/06/2020	Dishonestly obtain property by deception- T1 (48 Attempt)	Pending Court Appearance
Blacktown Local Court	12/06/2020	Dishonestly obtain property by deception- T1	Pending Court Appearance
Blacktown Local Court	12/06/2020	Knowingly/recklessly direct criminal group assist crime- T1	Pending Court Appearance
Blacktown Local Court	12/06/2020	Take prt supply prohibited drug <=small quantity- T2	Pending Court Appearance
Penrith Local Court	15/12/2020	Deal with property proceeds of crime <$100000-T2 (Attempt)	Taken into account on Form 1
Penrith Local Court	15/12/2020	Deal with property proceeds of crime <$100000-T2 (Attempt)	Taken into account on Form 1
Penrith Local Court	15/12/2020	Deal with property proceeds of crime <$100000-T2 (Attempt)	Fine: $1,200 Community Correction Order: 3 years commencing 15/12/2020 concluding 14/12/2023
Penrith Local Court	15/12/2020	Deal with property proceeds of crime <$100000-T2 (Attempt)	Fine: $1,200 Community Correction Order: 3 years commencing 15/12/2020 concluding 14/12/2023