Behtabian and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 776

Behtabian and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 776 (30 March 2020)

Division:GENERAL DIVISION

File Number:          2020/0192

Re:Seyed Mahmoud Behtabian

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:30 March 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member C. J. Furnell

Catchwords

MIGRATION – mandatory visa cancellation – whether the mandatory cancellation should be revoked - where the Applicant does not pass the character test – where the Applicant has a substantial criminal record – whether there is another reason the cancellation decision should be revoked – consideration of primary and other considerations – decision affirmed

Legislation

Crimes Act 1958 (Vic)

Migration Act 1958 (Cth)

Cases

Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305
Breeze v R [1999] QCA 303
Bartlett and Minister for Immigration & Border Protection [2017] AATA 1561
Briginshaw v Briginshaw [1938] HCA 34
Director of Public Prosecutions v Perry [2016] VSCA 152
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs [2019] FCAFC 185
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
R v Galas [2007] VSCA 304
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362
Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719
Vargas and Minister for Home Affairs [2019] AATA 3409

Secondary Materials

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member C. J. Furnell

30 March 2020

1. In this proceeding, the issue before the Tribunal is whether a power conferred by the Migration Act 1958 (the Act) to revoke a decision to cancel the Applicant’s visa ought to be exercised.

2. On 23 October 2018 the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa was subject to mandatory cancellation under s 501(3A) of the Act.

3. The cancellation was mandatory because a delegate of the Minister was satisfied that the Applicant did not pass the character test set out in s 501 of the Act on the basis of having a substantial criminal record and was then serving a sentence of imprisonment on a full-time basis in a custodial institution (Marngoneet Correctional centre) for an offence against a law of an Australian State.

4. The Applicant made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.

5. As a result, the Respondent could have revoked the decision to cancel the Applicant’s visa if satisfied that the Applicant passed the character test (as defined by s501 of the Act) or that there was another reason why the visa cancellation decision should be revoked.

6. On 17 December 2019, however, a delegate of the Respondent decided not to do so. 

7. The Applicant has applied to the Tribunal for review of that decision.

8. In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[1]

   [1] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14]-[15], [51].

9. As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[2]

   [2] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation. See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]; Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [21].

10. For the reasons which follow, I am not satisfied about either of those things.

    Does the Applicant pass the character test?

11. As mentioned above, I am not satisfied that the Applicant passes the s 501 character test.

12. Under that section, a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[3] The Applicant has such a record. He has been sentenced to a term of imprisonment of 12 months or more.[4] In particular, with respect to charges of theft, recklessly causing injury, aggravated burglary and assault, he was sentenced on 13 April 2018 to an aggregate term of imprisonment of three years and one month.[5]

    [3] Section 501(6)(a) of the Act.

    [4] Section 501(7)(c) of the Act.

    [5] G45 [54]. References to “G” in the footnotes are references to documents provided by the Respondent under s 501G of the Act.

    Is there another reason why the cancellation should be revoked?

13. I am not satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.

14. In arriving at that state of non-satisfaction I have sought to (as I am required by s 499 of the Act to) comply with a written direction of the Respondent titled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).

15. Compliance with Direction 79 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case.”[6]

    [6] Direction 79, cls 6.1(3) and 13(1).

16. It also requires that I take into account certain considerations (where relevant)[7], informed by certain principles.[8]

    [7] Ibid, cl 8(1).

    [8] Ibid, cl 7(1).

17. The relevant principles not only inform the process by which I take into account certain considerations, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[9]

    [9] Ibid, cl 6.2(3); Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 at [80]-[81].

18. Those principles are[10]:

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

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

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

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    [10] Direction 79, cl 6.3.

19. I turn now to outline some facts of relevance to the application of these principles to the Applicant’s case.

    Factual context

20. The Applicant is a citizen of New Zealand, having been born in Iran in 1971.

21. In Iran the Applicant obtained a Bachelor of Commerce degree.

22. In 1997 the Applicant, aged 26, sought and obtained refugee status in New Zealand and, after several years, was joined there by his parents and brother.

23. In May 2001 the Applicant[11] became a citizen of New Zealand.

    [11] G114.

24. In November 2001 the Applicant married a fellow Iranian immigrant to New Zealand (who in these reasons I shall refer to as Ms MA).

25. While in New Zealand, the Applicant operated a family owned-dry cleaning business for around five years and then a car rental business. The Applicant then purchased an accounting business franchise with his brother.

26. In August 2009 the Applicant’s first son was born.

27. In September 2009 the Applicant visited Australia for 12 days.

28. In December 2009 the Applicant made another visit to Australia, this time for around two months[12].

    [12] G119.

29. In December 2010, the Applicant, aged 39, together with his wife and son, immigrated permanently to Australia (albeit with an absence for a week in the middle of 2011).[13]

    [13] G146.

30. In May 2012 the Applicant’s second son was born. He was subsequently diagnosed with autism.

31. In Australia, the Applicant worked as a storeman and a house painter and decorator, ultimately opening his own business and engaging a number of employees (a history of work described as impressive)[14].

    [14] Sentencing Remarks of his Honour Judge Meredith, 13 April 2018, G43 [39] (Sentencing Remarks).

32. The Applicant’s father, mother and brother are citizens of New Zealand and currently reside there. The Applicant’s two sisters and their children (being two nephews and two nieces of the Applicant) live in Australia.

33. The Applicant and Ms MA are now divorced. She has subsequently remarried and lives in Australia with her husband and two children at her parents’ home.

34. The Applicant has been in remand or in prison since July 2016, with a roughly nine month break from September 2016 to June 2017.[15]

    [15] G188.

35. As is apparent from this, the Applicant has been convicted of a number of criminal offences in Australia and, as well, a number of traffic offences in New Zealand.[16]

    [16] The Respondent had initially characterised the New Zealand convictions as criminal convictions but acknowledged they were traffic convictions in a letter to the Applicant of 28 May 2019, see G22.             They included, with respect to conduct in August 2009 and September 2010, operating a vehicle carelessly, driving while his licence was suspended and driving with an excessive breath alcohol level, G35.

36. In Australia:[17]

    -On 30 April 2014, the Applicant was made the subject of a community correction order in relation to charges involving the possession of cannabis, amphetamine and a drug of dependence, as well as a charge of dealing in property suspected to be the proceeds of crime. 

    -On 9 April 2015, the Applicant was convicted and made the subject of community correction orders with respect to charges of dealing with property suspected to be the proceeds of crime, theft, use of an unregistered motor vehicle, forgery of an identification number, possessing methamphetamine and contravention of a community correction order.

    -On 17 May 2017, the Applicant was convicted of contravening a community correction order and unlawful assault and fined $2000.

    -On 12 September 2017, the Applicant was convicted of failing to answer bail      (two charges), theft (two charges), committing an indictable offence while on bail (two charges), contravening a conduct condition of bail, driving whilst disqualified (three charges) and contravening a family violence intervention order, and was sentenced to a term of imprisonment of, in aggregate, 60 days.

    -On 13 April 2018, the Applicant was convicted of aggravated burglary, common law assault, recklessly causing injury and theft and was sentenced to a term of imprisonment of, in aggregate, three years and one month.

    [17] G33-4.

37. The last set of convictions would appear to be the most serious. They arise out of several incidents occurring in an 18 month period commencing in late December 2015. Later in these reasons, I provide some detail as to those incidents.

38. I turn now to the considerations which I am required by Direction 79 to take into account.

    Part C Considerations – Overview

39. The relevant considerations are those set out in Part C of Direction 79.

40. Part C is divided into primary considerations and other considerations. 

41. The primary considerations are the:

    -protection of the Australian community from criminal or other serious conduct;

    -best interests of minor children in Australia; and

    -expectations of the Australian community.[18] 

    [18] Direction 79, cl 13(2).

42. The other considerations include (but are not limited to):

    -international non-refoulement obligations;

    -strength, nature and duration of ties;

    -impact on Australian business interests;

    -impact on victims; and

    -extent of impediments if removed.[19] 

    [19] Ibid, cl 14(1).

43. The primary considerations are generally to be given more weight than the other considerations[20] and one or more primary considerations may outweigh other primary considerations.[21]

    [20] Ibid, cl 8(4).

    [21] Ibid, cl 8(5).

    Protection of the Australian community

44. The protection of the Australian community from criminal or other serious conduct consideration is one that requires regard to be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[22]

    [22] Ibid, cl 13.1(1).

45. Taking this primary consideration into account requires that regard also be had to two subsidiary considerations, namely, the nature and seriousness of the Applicant’s conduct to date and the risk to the community should he commit further offences or engage in other serious conduct.[23]

    Nature and Seriousness of Conduct

    [23] Ibid, cl 13.1(2).

46. As for the nature and seriousness of the Applicant’s conduct to date, Direction 79 requires that a number of principles or factors be taken into account.[24] I will deal with each of these in turn.

    a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.

    [24] Ibid, cl 13.1.1(1).

47. As to this principle, it aligns with the second and third general principles that form part of the framework within which I should, under Direction 79, approach my task.

48. As previously outlined, amongst other things, these principles identify two expectations. The first is of the Australian community and it is that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes. The second is of non-citizens. It is that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature.

49. The Applicant has been convicted of several violent crimes. In particular, as I stated earlier, in April 2018 he was convicted of aggravated burglary, common law assault and unlawful assault. In May 2017 he was convicted of unlawful assault.

50. Given these convictions, the Applicant’s offending ought to be, and is, regarded as very serious.

51. His very serious offending (at least in terms of violent crime) is not, however, as extensive as the Respondent would have it.

52. The Respondent submits that the crime of recklessly causing injury is one of violence. [25]     I have some doubt as to this. It is not clear to me whether reckless conduct ought to be considered violent conduct. I note, for instance, that such conduct would not appear to constitute violence for the purposes of a provision of the Crimes Act 1958 (Vic) dealing with evidence of family violence.[26]

    [25] Respondent’s statement of facts issues and contentions of 3 March 2020 (SFIC), [19].

    [26] Crimes Act 1958, s 322J where violence is defined in terms of physical, sexual or psychological abuse.

53. The Respondent also submits that the Applicant engaged in certain conduct that, if engaged in, would have constituted the commission by the Applicant of a number of crimes in addition to those in respect of which he has been convicted.[27] In this regard, the Respondent contended that I was entitled to conclude that these additional crimes had been committed on the basis of representations made in various Victorian police incident reports.

    [27] Crimes concerning the trafficking of methamphetamine, assault and threats to kill.

54. While contemporaneous records, I do not consider that the police incident reports have a probative value either sufficient to support the conclusions urged by the Respondent or commensurate with the seriousness of the consequences for the Applicant of me concluding that he had committed the additional crimes now alleged.[28]    The representations contained in the reports are, largely, hearsay and the persons who made them were not made available to give evidence. Not only was the Applicant not convicted of the additional crimes which the Respondent contends he committed, he would not appear to have ever been charged with them[29] (suggestive of a somewhat dim view taken by the prosecutorial authorities as to the evidentiary weight to be attributed to the representations in the police reports, in the circumstances).

    b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

    [28] Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37]; LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50], citing Briginshaw v Briginshaw [1938] HCA 34; See the discussion of these cases in MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 at [141-147]; see also NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 at [41].

    [29] I note a charge of trafficking cannabis was withdrawn on 30 April 2014, SG139.

55. As to this principle, it aligns with an aspect of the third general principle that forms part of the framework within which I should, under Direction 79, approach my task being the aspect that has forfeiture of the privilege of staying in Australia being the general expectation of non-citizens who commit serious crimes of a violent nature against women or children.

56. The Respondent contends that the Applicant has been convicted of such a crime on the basis of his 2017 conviction for contravening a family violence intervention order.

57. I do not accept that contention.  The crime of contravening a family violence intervention order is not a crime of a violent nature. I accept that the circumstances of such a contravention might well entail violence and, if they do, this might well result in convictions for violent crime. A contravention of a family violence intervention order of itself, however, is not a crime of a violent nature.

1. Moreover, while the particular circumstances giving rise to the contravention are unclear, it would appear that they relate to those outlined in a Victoria police sub incident summary report of 31 May 2017.[30] In it is stated that the Applicant attended at his former wife’s residence, asked her to speak to him and threatened to “do anything I want with your life” if she called the police. 

   [30] SG159.

2. As I see it, if I can be satisfied that the Applicant made that threat, the circumstances of his contravention of the intervention order might properly be characterised as violent. While the concept of “violence” is not one that appears to have been the subject of exhaustive definition,[31] as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.”[32] Hence, an act of violence includes “…acts of intimidation and menaces as well as physical force.”[33]

   [31] R v Butcher [1986] VR 43 at 48.

   [32] IBID at 52; see also Breeze v R [1999] QCA 303 at [19] and R v Galas [2007] VSCA 304 at [31]-[32]. In Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305 at [38] it was suggested that violence, in a particular context, required force significantly greater than mere physical contact but this suggestion was couched so as to exclude “for present purposes threats and intimidation”.

   [33] Director of Public Prosecutions v Perry [2016] VSCA 152 at [40].

3. I am not so satisfied, however. I have (as earlier indicated) concerns about the probative value of police incident reports. Further, at the hearing, the Applicant agreed that he had attended at his former wife’s residence in contravention of the intervention order but denied the threat. His evidence was that he was only trying to speak to his former wife to try and understand why she was, according to him, no longer observing an informal agreement they had entered into in September 2016 concerning his access to their children.[34]

   [34] G86.

4. While I am not satisfied that his contravention of a family violence intervention order reflected a crime of violence against a woman, I am satisfied that the circumstances that gave rise to the order being made did reflect such a crime (recognising that in saying so I am simply stating a matter about which I am reasonably satisfied, not something that could necessarily meet the burden of proof in a criminal trial).

5. Despite being alerted to his privilege against self-incrimination at the hearing of this matter the Applicant stated that, on one occasion on 10 January 2016, he slapped his wife.       His evidence was that it was the only time he had done so in 15 years of marriage, evidence corroborated by Ms MA’s email of 17 November 2019, in which she suggested that the Applicant had always been gentle and nice to her and the children (albeit corroboration that is difficult to reconcile with a statement to the police made by Ms MA in July 2016).[35] In any event, while he was not charged with assault, it was the events of that day that would appear to have led to the making of the family violence intervention order.

   c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.

   [35] SG1.

6. As to this principle, it aligns, in part, with the first and third general principles that form part of the framework within which I should, under Direction 79, approach my task.        Amongst other things, those principles identify an expectation that non-citizens will respect Australia’s law enforcement framework and an expectation of non-citizens to the effect that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature against vulnerable members of the community.

7. As to this principle, the Respondent contends that Ms MA is a vulnerable member of the community, as the person the subject of the protection afforded by a family violence intervention order.[36] It was said that anyone the subject of the protection afforded by such an order is a vulnerable person.

   [36] SFIC, [20].

8. I have some difficulty with this contention. As I construe the concept of vulnerability (having regard, in particular, to the examples of vulnerable persons identified in Direction 79, the elderly and disabled), it seems to require that there be some impairment in the ability to protect oneself inherent in the person concerned.  Being the target of potential offending does not necessarily make a person vulnerable, it just makes the person a target. Rather than being an admission of vulnerability, it seems to me that obtaining an intervention order is more likely to reflect a concern to mitigate the risk of future trouble.

   d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.

9. In terms of this factor, the sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine[37]).

   [37] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [202].

10. In this matter, as was the case in Bartlett and Minister for Immigration & Border Protection[38], the Applicant “…contrived to continue his offending in circumstances where he … received multiple warnings and/or concessions from the sentencing courts in the form of community service orders, grants of bail, probation and previous terms of imprisonment.”

    [38] [2017] AATA 1561 at [32].

11. In particular, while his initial offending in Australia attracted community correction orders and fines, the Applicant ended up being sentenced to imprisonment on two occasions, in September 2017 and April 2018. The Respondent contends that these sentences are objective evidence of the seriousness of the offences involved. I agree. The imposition of any term of imprisonment reflects a view that the offence concerned was serious. In this regard, “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[39] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[40] .

    e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness

    [39] Vargas and Minister for Home Affairs [2019] AATA 3409 at [34].

    [40] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].

12. As to this factor, the Respondent contends that there has been a trend of increasing seriousness and frequency of offending since the Applicant’s arrival in Australia and, in this context, refers to what the Respondent characterises as a history of breaching court orders.

13. As for frequency of offending, the Applicant has been convicted of a variety of crimes in 2014, 2015, 2017 and 2018.

14. This is frequent offending given that he only immigrated to Australia at the end of 2010 and has only been free in the Australian community for something like 6.25 years (given time spent in remand or in prison).

15. Contrary to the Respondent’s submissions, however, the fact that the Applicant’s most recent offending is, on the whole, more serious than his earlier offending does not reveal any particular trend. In particular, I do not perceive his most recent offending to be an element of a consistent or longer term tendency to offend or as an element of some continuum of offending.  

16. The context in which that offending occurred was unique relative to the context in which the Applicant’s other offending occurred. In particular, the recent offending would seem to have been driven by uncontrolled jealousy. Indeed, the Respondent asserts that the “applicant’s violent crimes were driven first by jealousy and later by a desire for revenge”.[41]  By contrast, the Applicant’s earlier offending is of a type usually associated with greed or illicit drug use.

    [41] SFIC, [19].

17. The Applicant’s most recent offending occurred in the context of several incidents spread over a time frame of 18 months.

18. In particular, the last set of convictions (on 13 April 2018) arose out of two incidents occurring approximately six months apart (29 December 2015 and 3 July 2016).[42]

    [42] Sentencing Remarks 37-38.

19. The 29 December 2015 incident would not appear to have been premeditated.              The Applicant saw a younger man in the Melbourne CBD who he suspected of having an affair with his then wife. The Applicant punched the man and took his phone and wallet, apparently as an inducement to secure his attendance at a meeting the Applicant intended on having with his wife at his wife’s parents’ house.[43] At that meeting, the wallet and phone were returned after the Applicant’s wife had informed him that she preferred the company of the younger man. (As I stated earlier, the Applicant admitted to having slapped his former wife shortly after this incident, on 10 January 2016, which led to the family violence intervention order being made.)

    [43] Sentencing Remarks, G38.

20. At the time of the 3 July 2016 incident the Applicant and his wife had separated, she (with the two children of the marriage) having moved in with her parents. The Applicant went to the younger man’s residence apparently looking for his wife. In the course of doing so, the Applicant punched the younger man once.

21. On 31 May 2017, at a time when the Applicant was out on bail with respect to the charges laid in relation to the two earlier incidents, the Applicant contravened a family violence intervention order by attending at his former wife’s residence.[44]

    [44] SG159.

22. All these incidents appear to be linked in that they all arose in the context of what would appear to have been the Applicant’s “fraught state” as a result of the break-down of his marriage.[45]

    [45] Sentencing Remarks, 41. These remarks were made only in relation to the incidents of December 2015 and July 2016 but I am satisfied they also to the others.

23. I am not suggesting that this context constitutes an excuse for the Applicant’s conduct.     As the presiding judge said when sentencing the Applicant in April 2018 (in relation to the first two of these incidents) “[j]ilted former partners, almost invariably men, who are incapable of acknowledging their former partner’s right to move on in life, and who proceed to offend against either the former partner or a person they perceive as being a new partner, cannot be tolerated.”[46]

    [46] Sentencing Remarks 42.

24. While not an excuse for the Applicant’s conduct, the context does serve to differentiate his latest set of convictions from most of his earlier ones which by and large seem to entail drug and property offences, as well as a disregard for lawfully imposed restrictions on his conduct.

25. This differentiation is consistent with the character reference provided by the Reverend   Dr Durie on 23 February 2018[47] in which it was observed that, when he found out about his then wife’s affair in 2015, the Applicant was fairly unstable for around six months.

    [47] G10.

    f)     The cumulative effect of repeated offending.

26. As to this factor, the Respondent contends that the Applicant’s offending has been consistent, frequent, sustained and repetitive. As a result, and in combination with the Respondent’s contention as to trends in offending, it submits that the Applicant’s offending should be viewed as very serious.

27. I agree that the Applicant’s offending has been frequent and I have already accepted that it should be regarded as very serious.

28. Nevertheless, it is difficult to characterise the offending as repetitive, sustained and consistent, subject to one exception.

29. The Applicant has shown a repeated disregard for lawful restrictions on his conduct.         In particular, on 9 April 2015 he was found to have contravened a community correction order, on 17 May 2017 he was found to have contravened a community correction order, on 12 September 2017 he was found to have contravened a family violence intervention order, driven while disqualified, failed to answer bail and contravened a conduct condition of bail.

30. This disregard for lawful restrictions on conduct brings to mind the first general principle that forms part of the framework within which I should, under Direction 79, approach my task. In particular, I see from the Applicant’s history a failure to meet what is characterised in the Direction as an expectation that non-citizens respect important institutions, such as Australia’s law enforcement framework.

31. Further, while no trend is revealed by the Applicant’s offending (subject to the exception I mentioned earlier), the cumulative effect of it has clearly been deleterious to not only those immediately affected but also to the Australian community at large.

    g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.

32. As to this factor, the Respondent contended that the Applicant has provided false or misleading information by failing to disclose his previous traffic offences in New Zealand. In particular, on an incoming passenger card the Applicant declared that he had no previous criminal convictions.[48]

    [48] G72.

33. As I understood it, this contention was not maintained. In a letter to the Applicant of         28 May 2019, the Respondent appears to have accepted, implicitly, that the initial characterisation of the Applicant’s convictions in New Zealand as criminal convictions was wrong and that they ought, instead, to have been characterised as traffic convictions.[49]

    h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    [49] G182.

34. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

35. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Risk of reoffending

36. I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community consideration. This is, as I mentioned earlier, the risk to the community should the Applicant commit further offences or engage in other serious conduct. In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and the likelihood of him engaging in such conduct (taking into account available information and evidence on the risk of the non-citizen re-offending).[50]

    [50] Direction 79, 13.1.2(1).

37. The approach to be adopted when considering these matters cumulatively varies with the type of offending which the Applicant has shown a propensity to commit. In this regard, as I suggested earlier, it seems to me that the Applicant’s offending falls into two basic categories; his early offending consisting of, essentially, drug and property offences and his later, more serious offending, involving violence motivated by jealousy and revenge.

38. As to the first type of offending, property offences clearly adversely affect those whose property rights are infringed, while illicit drug use not only adversely affects the user but also often results in the incurring of a range of social costs (both actual and opportunity costs). As to the second type of offending, should the Applicant again engage in violence driven by jealousy and revenge, it could result in physical and psychological harm to his former wife and her current and former partners, with indirect harm being suffered by their children and her parents (given that his former wife lives with her parents).

39. As for the likelihood of the Applicant again engaging in offending of the type previously engaged in should he be released to the community, I do not believe it to be likely.

40. While it cannot be said that there is no risk of the Applicant reoffending,[51] on the material before me, and having considered what the Applicant had to say at the hearing of this matter, my assessment is, as I said, that it is not likely. The fact of past offending does not, of itself, render future offending likely. For instance, it might be that the circumstances of a person’s past offending are such as to suggest that the past is not a reliable guide to the future. That is the case in relation to the Applicant.

    [51] As Justice Mathews, then a Deputy President of the Tribunal, observed in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] “[o]nce a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.”

41. As for his early offending consisting of, essentially, drug and property offences, the Applicant’s evidence suggests a significant causal nexus between his substance abuse (alcohol and illicit drugs) and that offending.  He says, however, that he is now “clean”, having not indulged in alcohol and illicit drugs for some time (a result no doubt helped by his incarceration since July 2016[52]). He is also committed to remaining clean.

    [52] G186-189.

42. While practical experience suggests that commitments by addicts such as that made by the Applicant are often unfulfilled, the Applicant’s evidence at the hearing gave me some confidence that the commitment he makes was grounded in a real desire and determination. Without hesitation, in the presence of his parents, sister and nieces, he expressly stated he was an addict and alcoholic. He then went on to outline some of the steps he had taken to address his addiction, as well as steps he proposed to take when released into the community. Amongst other things, he noted, almost as an afterthought, that for three years he had been attending weekly meetings of NA (which I understand to be a reference to an organisation known as Narcotics Anonymous, a “fellowship or society of … recovering addicts who meet regularly to help each other stay clean”[53]). His plan was that, upon being released into the community, he would continue to attend such meetings, with the aim of becoming a counsellor to other addicts.

    [53] See the Narcotics Anonymous website, <>

    As for the Applicant’s more recent offending, again, there is reason to believe that the past is not a reliable guide to the future.

43. As the Respondent contends, it was driven by jealousy and a desire for revenge, in a context where the Applicant’s then wife had made clear her preference for the company of another man. Presumably as a result of his emotional disturbance, the Applicant experienced (according to the Reverend Dr Durie) a period of instability, a period during which most of the recent offending took place.  These circumstances no longer exist and there is no reason to believe that they will be repeated in the future. The period of instability to which Dr Durie referred has elapsed and emotions cool with time. It is now more than three years since the Applicant and his former wife separated, they are now divorced and she would appear to have moved on, given that she is now apparently married to a third party.[54]

    [54] I note that in the sentencing remarks the presiding Judge would appear to have accepted the proposition that the Applicant has accepted that his marriage is over and that he wants to move on with his life, see G43 [40].

1. The risk of the Applicant reoffending is also ameliorated by a number of other factors, being:

   (a)The likelihood of him having been given a salutary lesson about the prospect of removal from Australia should he again offend (brought home to the Applicant by, amongst other things, him having been imprisoned for the full term of his sentence without the benefit of parole).

   (b)His acknowledgement of personal responsibility for his offending and remorse for the difficulties he had caused others by reason of it (albeit that it is difficult to distinguish between feigned and legitimate insight and remorse).[55] The Respondent contended that the Applicant had displayed a lack of insight by denying certain aspects referred to in the prosecution brief in relation to the November 2016 proceedings. I do not accept that contention. The inclusion of an allegation in a prosecution brief is not evidence of its validity and, contrary to the Respondent’s submission, nor were those allegations accepted as valid by the presiding Judge. A lack of insight was also said to be reflected by the Applicant’s denial of his having gone to certain premises in July 2016 intending to assault the man with which Ms MA was then involved. Again, I do not accept that contention. As I see it, no lack of insight is evident in a context where the Applicant admitted the assault, just not that he had gone to certain premises intending an assault. Further, while the relevant intent might have been an element of a crime to which the Applicant pleaded guilty (aggravated burglary), the denial now of that intent, in my view, is better explained by a lack of awareness of the elements of the crime of which he was guilty, rather than a lack of insight as to the wrongness of his conduct.   

   (c)The network of support he has in Australia, in particular his sisters and four nieces and nephews[56] (albeit I do not consider this to be of particular significance to the Applicant’s risk of reoffending given that this network is not of recent origin and did not operate to prevent the Applicant’s past offending).

   (d)The steps the Applicant has taken to address the issues that had confronted him and to improve his prospects of successfully reintegrating into the community. In this regard, I note his participation in an extensive range of programs over the last few years.[57]

   (e)The real prospect that the Applicant will seek and gain employment, noting that he has been said to have “an impressive work history”.[58] (I have discounted a letter suggestive of there being an offer of employment to the Applicant on release from prison.[59] The letter was written in 2018 under letterhead of a business which an internet search was unable to identify as currently subsisting. Moreover, the Applicant sought to place no weight on the offer reflected in the letter.) It is true, as the Respondent contended, that there is some uncertainty concerning matters that would be of significance to the Applicant were he to be released into the community. In particular, there is no certainty of employment should the Applicant be so released.   His work history is such, however, as to suggest a willingness to pursue, and a capacity to obtain, employment. The Respondent also referred to the fact that no arrangements for access to the Applicant’s children subsist. As to this, however, Ms MA has indicated a willingness to have the Applicant participate in their children’s life and I note her preparedness in the past to enter into an access arrangement with the Applicant.[60]

   [55] Several statements of support suggested the Applicant was, indeed, remorseful and in this regard reference is made to a statement of 13 February 2020 of Mr Davood Biglari and a statement of 5 February 2020 of Mr Nayereh Khorramdel. The Applicant’s father also provided a statement of support (dated 17 February 2020) although, to an extent, comments made in that statement could be characterised as “victim blaming” and, hence, not suggestive of significant insight. Those comments were not endorsed by the Applicant. 

   [56] Note also the statements of support noted in the previous footnote from friends resident in Australia and also a statement of support of 30 January 2020 from Mr Atiyeh Marvian.

   [57] G91-112, 5/9/17-participate in workplace safety arrangements; 27/3/18-24 hour managing ice addiction program; 18/5/18-initial training in responsible service of alcohol program; 23/7/18-6 week change on the inside program; 29/5/18-managing emotions program; 31/5/18-think smart program; 5/6/18-positive problem solving program; 31/7/18-coping with change program; 30/8/18-building healthy relationships program; 3/9/18-managing loss; 30/11/18-managing interpersonal relationships.

   [58] Sentencing Remarks, [39].

   [59] G90.

   [60] G86-7.

2. My assessment that the Applicant is not likely to commit offences of the type he committed in the past is:

   (a)I venture to suggest, probably reflective of those of the person possibly most at risk should my confidence in the Applicant’s reform be misplaced. In this regard, I note that Ms MA’s correspondence with the Respondent[61] suggests that she is generally supportive of the Applicant’s application to have the decision to cancel his visa revoked.

   (b)Consistent with the views of the Judge presiding when sentencing the Applicant in relation to his most recent offending. In this regard, Judge Meredith’s assessment was that the Applicant’s “rehabilitative prospects are positive.”[62]

   Conclusion

   [61] Email of 17 November 2019.

   [62] Sentencing Remarks, [47]. This reflected his Honour’s conclusion, albeit that it was acknowledged at [35] that the Applicant’s contravention of a family violence intervention order after the offending that gave rise to his most recent convictions “shed light on the risk of recidivism…[and] rehabilitation prospects…”.

3. I have found that the Applicant has committed serious crimes, that his offending has been frequent and that it has indicated a lack of respect for Australia’s’ law enforcement framework.

4. The result of this is that the protection of the Australian community consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa. It does so, however, to an extent less than the seriousness of his offending and the violence involved in it might otherwise warrant given, in particular, my assessment that it is not likely that the Applicant would again commit crimes of the type for which he has been convicted.

   The best interests of minor children in Australia

5. The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. Indeed, I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.

6. In this matter the children whose best interests the Tribunal was being asked to take into account were identified as the Applicant’s two sons, a nephew aged 11 and a niece aged 16. Their interests are required to be given individual consideration, to the extent that their interests may differ.

7. In taking their best interests into account, Direction 79 requires that certain factors be considered, where relevant. Before addressing those factors, however, I mention that, overall, there was a paucity of factual material before the Tribunal on which a determination could be made of the relevant children’s best interests. Because, I suspect, the Applicant was self-represented, in large part, statements made by him did not rise above generalised assertions along the lines that children are disadvantaged by their father’s (and uncle’s) absence.

8. As for the factors I am required to consider (where relevant), they are:

   a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).

9. The Applicant has no parental relationship with any of his children, his nieces or nephews (two of whom are minors). Moreover, as to his two children (both of whom are minors), he has not seen or communicated with them for around three years (while he has been in prison), since they were six and four years old, respectively (them now being around 10 and seven years old).

10. In addition, as contended by the Respondent, there is no compelling evidence of any efforts by the Applicant to contact his children.

11. This combination of facts would normally detract significantly from any proposition that it would not be in the best interests of children for the parent concerned to be removed from Australia (the likely legal and practical result of a decision to affirm the decision to revoke the Applicant’s visa). Here, however, the significance to be afforded to these facts is reduced somewhat given that the Applicant is bound not to contact his children by the intervention order put in place in September 2016 (and remaining in force until July 2021).[63]  

    b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.

    [63] SG120.

12. This factor depends, in part, on the validity of my assessment that the Applicant is not likely to reoffend if released into the community. If valid, the Applicant is, I find, likely to play a positive role in each of his children’s lives and that role is likely to be parental.     Both children are quite young and, hence, parental guidance is likely to be required in their lives for some time. Moreover, while details of the younger son’s autism are not before the Tribunal, his requirement for parental involvement might extend beyond the age of majority.

13. I accept, as the Respondent contends, that no access arrangement is in place and, as such, there can be no certainty about either the nature or extent of any role the Applicant would have in his children’s lives. However, as I stated earlier, Ms MA has indicated a desire to have the Applicant involved in their lives and has previously been prepared to enter into access arrangements with the Applicant. I also note that she was so prepared despite the subsistence of an intervention order (noting that such an order still subsists and is not due to expire until July 2021).

    c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.

14. The Applicant’s prior conduct might have had a negative impact on his children if it resulted in them missing out on an element of care that was not addressed by Ms MA’s decision to reside with her parents or by her re-partnering. Given the material before the Tribunal, however, this could not be assessed.

15. As for the Applicant’s likely future conduct, if he is released into the community and reoffends, I suspect that much will depend on whether he had managed to embed himself into his children’s lives at the time of his reoffending. As I stated earlier, however, my assessment is that he is unlikely to again offend.

    d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.

16. I find that the Applicant’s separation from the relevant children as a result of his removal from Australia would not be likely to have an adverse effect on any of the relevant children, when assessed against the status quo. Whilst it might be accepted that in the usual case facilitating a child’s relationship with his or her biological parent is in the interests of the child, in this case, for a significant proportion of their lives, the Applicant’s children have had no contact with him.  In particular, for the last three years or so the Applicant has had no contact with his children (and would only have had, at most, intermittent contact with his nephew and niece).

17. I also find, however, that the Applicant’s separation from his children as a result of his removal from Australia would be likely to have an adverse effect on them, when assessed in relation to the circumstances likely to apply were the Applicant to be released into the community.  Given Ms MA’s willingness to have the Applicant play a role in the children’s lives and in the context of my finding concerning the risk of the Applicant reoffending, denial to the children of the benefit of having another person devoted to them (which I accept that the Applicant is),[64] in physical proximity to them, can only be adverse. I cannot make any assessment of the extent of that adversity, however, on the material before me. I suspect that much would depend on the likely needs of the children (in particular, the son diagnosed with autism) and the extent to which those needs can be satisfactorily addressed either remotely (e.g. over the telephone) or by the children’s subsisting parental care arrangements.   

    [64] See the letter of support of Mr Khorramdel of 5 February 2020 and the letter of support from Ms Marvian of 30 January 2020.

    e)    Whether there are other persons who already fulfil a parental role in relation to the child.

18. As for the nephew and niece, I understand that others do fulfil a parental role (and the Applicant does not contend that he has ever performed such a role in relation to them).

19. As for the Applicant’s children, little is known about their current situation other than that they live with their mother and their grandparents, and that Ms MA might have                 re-partnered.

20. From this I infer that Ms MA already fulfils a parental role in relation to the children, as do her parents.

    f)     Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

21. No views of any of the relevant children are known.

    g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect

22. There is no evidence of this before me.

    h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.   

23. There is no evidence of this before me.

    Conclusion

24. Overall, my determination is, in relation to each relevant child, that revocation of the visa cancellation decision made in relation to the Applicant is in the child’s best interests.

25. The best interests of minor children in Australia consideration weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.  The weight I attribute to this consideration is, however, not significant. As for his nephew and niece, the adverse effect on their interests by the removal of the Applicant from Australia would be slight.  As for his two children, when considered only in the context of the status quo, there would appear to be little, if any, adverse effect on them were the Applicant to be removed from Australia. The adverse effect on the children which I have determined to exist is one that essentially exists only when assessed against the circumstances likely to obtain were the Applicant to be released into the community.          In that way the Applicant’s removal from Australia would, effectively, give rise to an opportunity cost borne by his children. On the material before me, however, I am unable to assess the size or extent of that cost. 

    Expectations of the Australian community

26. The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.

27. In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.

28. Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred,  this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[65]

    [65] FYBR v Minister For Home Affairs [2019] FCAFC 185 at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that the “Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.

29. In the result, “…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight.          In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”[66]

    [66] Ibid at [101]-[102].

30. The enquiry which this consideration engenders does not concern what the Australian community expects in fact, but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79, being cl 13.3, itself. [67]

    [67] Ibid, per Charlesworth J at [68].

31. Here the Applicant has engaged in what is regarded in Direction 79 as very serious criminal offending.

32. In this context, the expectation which the Australian community is deemed in Direction 79 to have is, when applied in this proceeding, that the decision to cancel the Applicant’s visa not be revoked. Hence, this consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa. 

33. As recognised in FYBR, however, the weight to be attached to this consideration may vary, depending on what is appropriate in the circumstances. As such, that weight might be said to “undulate significantly according to the context of the non-citizen’s offending and the broader landscape of the non-citizen’s general conduct in Australia.”[68]

    [68] Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 at [108].

34. While the Applicant has engaged in serious criminal offending, as I have suggested earlier, his most recent and more serious offending would not appear to form part of any trend or pattern and it is (so I have found) unlikely that he will reoffend. In this context, while the consideration concerning the expectations of the Australian community weighs against of a finding that there is another reason to revoke the decision to cancel the Applicant’s visa, the extent to which it does so is not significant.

    Other considerations

35. The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.

1. Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of:

   -international non-refoulement obligations;

   -strength, nature and duration of the Applicant’s ties to Australia;

   -the impact of non-revocation of the Applicant’s visa on Australian business interests;

   -the impact of non-revocation of the Applicant’s visa on victims; and

   -the extent of impediments if the Applicant is removed from Australia.

   International non-refoulement obligations

2. These obligations are ones not to forcibly return a person to a place where they will be at risk of harm from which persons are protected under international agreements such as the Refugees Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights.

3. The Applicant expressed a fear of harm should he be returned to Iran. While this fear might be justified (despite the Applicant’s six month sojourn back to Iran in 2009), I nevertheless do not find that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa.

4. As I see it, the Applicant’s circumstances are not such as to result in non-refoulement obligations being engaged. While the Applicant is likely to be removed from Australia if the decision to cancel his visa is not revoked, [69] there is no suggestion of that removal being to Iran, as opposed to New Zealand (the country of which the Applicant is a citizen).       

   [69] Migration Act 1958, s 198(2B).

5. The Applicant expressed a fear that, once returned to New Zealand, it would be the New Zealand authorities that may return him to Iran.[70] There was no material before me, however, suggestive of any factual foundation for this fear.

   [70] G81.

6. As such, this consideration does not weigh in favour of revocation of the decision to cancel the Applicant’s visa.

   Strength, nature and duration of ties

7. In the context of this consideration, Direction 79 requires that regard be had to two further considerations.

   a)    How long the non-citizen has resided in Australia, including whether the         non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

8. The Applicant did not immigrate to Australia until he was 39 years old and has only spent around 10 years in Australia.

9. He began offending within two to three years of immigrating.[71]

   [71] The Applicant’s convictions in April 2014 relate to conduct in 2013.

10. Offset against these factors, however, is the Applicant’s impressive work history, as it was characterised by the Judge presiding at sentencing with respect to the Applicant’s most recent convictions.[72] 

    b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the         non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely)

    [72] Sentencing Remarks, [39].

11. The Applicant would appear to have strong family and social links to Australia. His two sisters reside in Australia (albeit that they are citizens of New Zealand).[73] He also has a number of friends who reside in Australia (and I refer to the letters of support from Mr Khorramdel of 5 February 2020, Mr Biglari of 13 February 2020 and Ms Marvian of  30 January 2020), as well as links to a church whose congregation, I infer, includes or comprises Christians originating from Iran (as reflected in the letter of support from          Mr Biglari and a character reference provided by the Reverend Dr Durie on   23 February 2018[74]).

    [73] G77.

    [74] G10.

12. As for the effect of non-revocation of the decision to cancel the Applicant’s visa on his immediate family in Australia, I have canvassed that issue in terms of his children (and related minors) earlier. As for his sisters (and one nephew and one niece, both aged over 18), there is no material before me as to the effect non-revocation would have on them apart from a contention made by the Applicant (which I fail to understand) to the effect  that his sisters would feel guilty because they had brought him to Australia.[75] I note that they are both New Zealand citizens and, as such, there should be no restriction on their capacity to visit the Applicant (as well as their parents and other brother) on his removal to New Zealand.  

    [75] G81.

13. Overall, given his family and social links to Australia, I conclude that the strength, nature and duration of the Applicant’s ties to Australia are such as to support revocation of the visa cancellation decision. The weight of that support is not, however, significant in light of his relatively recent arrival in Australia at a mature age.  

    Impact on Australian business interests

14. Direction 79 requires that I consider the impact on Australian business interests if the Applicant’s visa cancellation decision is not revoked but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

15. Given the absence of material before me of relevance to this consideration it favours neither revocation nor affirmation of the decision to cancel the Applicant’s visa.

    Impact on victims

16. Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel the Applicant’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and the Applicant has been afforded procedural fairness.

17. There is no such information available and, as such, this consideration favours neither revocation nor affirmation of the decision to cancel the Applicant’s visa.

18. I note that the victim of the assault by the Applicant in July 2016 did provide a statement to the police indicating his fear and concern should the Applicant be then released on bail.[76] There is nothing to suggest that this fear is felt now should the Applicant be released back into the community. The statement made by the victim is several years old and evidence before the Tribunal suggests that the Applicant’s ex-wife is no longer in a relationship with the gentleman concerned.

    [76] S13.

    Extent of impediments if removed

19. Direction 79 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to their home country (in this case New Zealand), 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 his age and health, whether  there are substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.

20. For the reasons outlined below, I find that this consideration weighs neutrally in determining whether to revoke the decision to cancel the Applicant’s visa.

21. While there might be some initial difficulties faced by the Applicant in re-establishing himself in New Zealand, the Applicant expressed confidence in his ability to do so.     Indeed, the Applicant stated that he is likely to have a better life if he were removed to New Zealand (which, given his evident concern to have access to his children, I take to mean a better life, materially). In this regard, I note that:

    (a)the Applicant has spent more of his adult life in New Zealand than in Australia;

    (b)the Applicant would have at least some support network available to him on return to New Zealand given that his parents and brother live there;

    (c)As a citizen of New Zealand the Applicant would be entitled to the same level of social, medical and economic support as any other citizen of that country;

    (d)the Applicant has previously worked in New Zealand and there is no apparent impediment to his capacity to utilise in New Zealand his skills as a painter and decorator. 

    Conclusion as to other reason for revocation

22. As to there being another reason for revocation of the decision to cancel the Applicant’s visa, my findings in relation the considerations to which Direction 79 requires that I have regard do not point in a uniform direction. In particular:

    (a)support for being satisfied that there is such a reason can be found in my findings concerning the primary consideration as to the best interests of minor children in Australia and the “other considerations” (mainly due to my findings concerning the strength, nature and duration of the Applicant’s ties to Australia); and

    (b)support for being not satisfied that there is such a reason can be found in my findings concerning the primary considerations as to protection of the Australian community from criminal or other serious conduct and expectations of the Australian community.

23. In the result, I am not satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.  This state of non-satisfaction is consistent with my findings in relation to two of the three primary considerations. The general position which has the primary considerations in Direction 79 being given greater weight than the other considerations is not displaced in this proceeding. Nor is this a proceeding in which the one primary consideration supportive of there being another reason for revocation of the visa cancellation decision (the best interests of minor children in Australia) outweighs the other two primary considerations.[77]  For the reasons outlined earlier when discussing that primary consideration, the weight which it carries in this proceeding is not significant.

    [77] Direction 79, cl 8(5).

    Decision 

24. As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.

25. I am not satisfied that the Applicant passes the character test.

26. I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.

27. For these reasons the decision under review is affirmed.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

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

Associate

Dated: 30 March 2020

Date of hearing:	17 March 2020
Applicant:	In person
Advocate for the Respondent:	Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore