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

[2020] AATA 3691

Bousheri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3691 (21 September 2020)

Division:GENERAL DIVISION

File Number(s):2020/4123      

Re:Matthew Ranjbar BOUSHERI  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M Kennedy

Date:21 September 2020

Place:Adelaide

The decision under review is affirmed.

................[sgnd]........................................................

Member M Kennedy

CATCHWORDS

MIGRATION – Mandatory visa cancellation – Request for revocation of cancellation – Character test – Substantial criminal record – Drug offences – Protection of the Australian community – Expectations of the Australian community – Best interests of minor children – Other considerations – No strong ties to Australia – decision affirmed

LEGISLATION

Migration Act 1958 (Cth)
Migration Regulations 1994

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

CASES

Afu and Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCAFC 185

REASONS FOR DECISION

Member M Kennedy

1. The applicant seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa.

   LEGISLATIVE FRAMEWORK

2. Section 501 of the Act provides for the cancellation of a visa on character grounds. 

3. Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa: section 501(3A) of the Act.

4. Where a visa has been cancelled under section 501(3A), the Minister has power, under section 501CA(4) to revoke the cancellation decision. That section permits revocation if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.

5. The criterion at subparagraph 501(3A)(b)(ii), upon which the mandatory visa cancellation may be revoked is the sole issue in this review: that is, whether I am satisfied that there is another reason why the original decision should be revoked. My approach to the consideration of that issue is the subject of a Ministerial Direction.

   DIRECTION NO. 79

6. Section 499 of the Migration Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.

7. Ministerial Direction 79, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Mr Bousheri’s revocation request.  I am to treat the following as primary considerations:

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

   (b)the best interests of minor children in Australia; and

   (c)the expectations of the Australian community

8. Other considerations must also be taken into account. They are:

   (a)international non-refoulement obligations;

   (b)the strength, nature and duration of ties;

   (c)the impact on Australia’s business interests; and

   (d)the impact on victims and the extent of impediments.

9. Primary considerations are generally to be given greater weight than the other considerations.

10. The Direction provides further guidance to me in terms of the objectives of the Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.

11. The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.

12. The relevant principles against which I am to approach the exercise of my powers in this matter are that:

    ·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;

    ·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;

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

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

    ·the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.

13. At the time of the mandatory cancellation of his visa, Mr Bousheri held a Special Category (Class TY) subclass 444 visa.

    Background

14. The applicant has two traffic-related convictions and three convictions for supplying prohibited drugs.  Of the three convictions related to supplying prohibited drugs, there is one for supplying a commercial quantity and two for smaller but nonetheless indictable quantities.  The two offences relating to the smaller quantities were taken into account in the sentencing for the commercial quantity.  For these offences, Mr Bousheri was sentenced to three years imprisonment, with a non-parole period of one year and seven months.  Mr Bousheri was due for release no earlier than 18 September 2020.  Mr Bousheri has been serving his sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of New South Wales.

15. Recognising that as a result of this sentence Mr Bousheri had a “substantial criminal record” and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister cancelled Mr Bousheri’s visa on 15 November 2019 pursuant to subsection 501(3A) of the Act.  On 10 December 2020 Mr Bousheri made representations seeking the revocation of the visa cancellation.  On 30 June 2020, a delegate of the Respondent decided not to revoke the cancellation.

16. On 9 June 2020 the applicant applied for review in the Tribunal.

    Documentary evidence

17. I have taken into consideration the following documentary evidence:

    ·Section 501 G Documents

    ·Respondent’s Tender Bundle

    ·Witness statements of Rahil Kumar, Kendahl Ranjbarboushehri, Nicole Ranjbar, John Odicho, Angela Bourne and Mary Saada.

    ·Certificate of achievement from the Gurnang Life Challenge

18. Before considering the principles set out in the Direction and how they apply in these particular circumstances, I will provide a brief summary of the evidence I have received regarding the applicant’s background, family and life in Australia and New Zealand.

19. Mr Bousheri was born in Auckland to parents who had migrated to New Zealand from Iran. He has an older brother, two sisters and a half-sister.  His parents separated when he was four and he lived with his mother.  Mr Bousheri completed high school in New Zealand and obtained qualifications in travel and tourism.

20. Mr Bousheri first came to Australia on 21 October 2014 when he arrived in Sydney.  He stayed for just under two months with friends.  Mr Bousheri returned on 31 March 2015, again to Sydney.  This time Mr Bousheri stayed for one year and nine months.  During this longer stay, Mr Bousheri met a girlfriend through mutual friends, and continued that relationship until he left Australia on 31 December 2016.  Mr Bousheri worked in Australia during this period for a logistics firm.  He rented premises in south-western Sydney.

21. Mr Bousheri sold MDMA at a festival in Wollongong in September 2016, apparently to Police informants and to an undercover Police officer.  Mr Bousheri had developed a drug habit himself.  He made further sales of prohibited drugs in December 2016, including cocaine.  Mr Bousheri left Australia on 31 December 2016 as his father had become ill in New Zealand.  Mr Bousheri’s father has subsequently passed away.

22. Upon returning to New Zealand, Mr Bousheri found employment with Air New Zealand as a baggage handler, and then for a company servicing Qantas flights. He returned to Australia for brief visits on 17 March 2017 (three days) and 24 November 2017 (four days), arriving in Sydney on both occasions.   Mr Bousheri also arranged by telephone for the supply of commercial quantities of MDMA to the undercover Police officer in New South Wales in January and February 2017.

23. Mr Bousheri travelled to Australia again on 19 February 2019 to visit his sister who had by then migrated to Melbourne.  Mr Bousheri did not however make it out of the airport as he was identified at the border to be the subject of a warrant for his arrest for the offending in 2016 and 2017.  Migration records however demonstrate that a subclass 444 visa was in fact granted to him at the border. He has remained in custody in Australia since that date.

24. Mr Bousheri has been visited by his family while incarcerated in New South Wales, including by his sister who now lives in Melbourne and his mother who travelled to Australia to visit him.  Due to the circumstances of the COVID-19 pandemic, visitation has been primarily by video conference more recently.

25. Mr Bousheri’s sister and brother in law live in Melbourne.  They have a child, Mr Bousheri’s niece, “R” who is aged 6.  Mr Bousheri’s other sister, brother, and mother live in New Zealand.  Mr Bousheri’s brother and sister-in-law have four children, “S”,”K”, “Ac” and “Az”. “S” and “K” are from a previous relationship of Mr Bousheri’s sister-in-law.  Mr Bousheri’s sister in New Zealand is currently living in a mental health facility.  Her health deteriorated this year which required Mr Bousheri’s mother to return to New Zealand from Melbourne, as did the circumstances of the COVID-19 pandemic.  Mr Bousheri has no contact with his half-sister.  Mr Bousheri’s mother, brother, sister-in-law and sister intend to migrate to Melbourne once the circumstances of the COVID-19 pandemic permit.

26. No issue arises as to whether Mr Bousheri has a ‘substantial criminal record’ as defined by subsection 501(7) of the Act, and I find that he does.  It follows therefore that Mr Bousheri fails the ‘character test’ as provided for by subsection 501(6) of the Act.

27. The issue for me to decide in this review therefore is whether there is another reason why the original decision (i.e. the visa cancellation) should be revoked.

28. I now turn to the considerations under Direction 79.

    Primary consideration: The protection of the Australian community.

29. When considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Furthermore, remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding and will not cause or threaten harm to individuals or the Australian community.

30. I am to also give consideration to:

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

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

31. It is clear that Mr Bousheri, through his offending, has not met the expectation that he be law abiding as a non-citizen in Australia.  His conduct had the potential to cause significant harm to members of the community through the supply of illicit drugs in commercial quantities.

    The nature and seriousness of Mr Bousheri’s conduct

32. The sentencing remarks of Judge Harris of the New South Wales District Court are comprehensive, and I can do no better that to reproduce an extract of those remarks detailing the circumstances of Mr Bousheri’s crimes:

    The facts upon which the offender is to be sentenced are part of an agreed statement of facts, and are as follows:

    In October 2016, police investigators attached to the Lake Ilawarra and Wollongong Drug Units initiated a strike force to investigate the supply of prohibited drugs in several geographical areas within the Illawarra region. As a result of initial investigations, a controlled operation authority was applied for and granted. It authorised undercover and street level operatives to negotiate and purchase prohibited drugs in specific locations. On each of these deployments, covert and electronic surveillance captured the movements of identified persons and persons known to the police.

    As a result of these deployments, a varying amount of prohibited drugs were purchased from the offender. Between 26 November 2016 and 9 February 2017, the offender supplied a total of 221.97 grams of MDMA on six occasions.

    On the first occasion, the offender supplied 0.27 grams of MDMA, which was of a purity of 75.5%. This was on 26 November 2016 at about 6pm when two female persons known to police attended a music festival in Stuart Park in North Wollongong. While inside the festival, both have engaged the offender (who they knew as “Matt”) in conversation where it was agreed that the offender would supply them with capsules of MDMA, or MDA. They entered into an agreement with the offender for him to supply them with six caps for $180. The offender handed over several loose capsules to one of the females. They were small and clear, containing a brown crystal powder substance. That female handed to the offender $180 in exchange for seven capsules. The offender supplied the females with his mobile phone number ending in 832.

    The second supply took place at about 9.51pm on Saturday 3 December 2016 and was a supply of 3.5 grams of MDMA at a purity of 10.5%. On this occasion, the two females met with the offender in a carpark in Wollongong. It had been agreed that the females would meet the offender at that location for him to supply them with MDMA or MDA. While at the location, the females negotiated a purchase of 30 capsules from the offender for $500. The offender handed them a small resealable bag which contained 31 capsules in exchange for $500.

    The third supply took place on 13 December 2016 at about 9.35pm and involved the supply of 12.5 grams of MDMA at a purity ranging between 21% and 48.5%. On this occasion, Natasha, one of the females involved in the earlier supplies, and an undercover operative “Ronnie”, met the offender in the same carpark in Wollongong. It had been agreed that they would meet the offender at that location for the offender to supply them with MDMA or MDA. The male and female, that is Natasha and “Ronnie”, negotiated the purchase of 150 capsules of MDMA from the offender for $1900. The offender handed “Ronnie” a package which contained 132 capsules. Ronnie handed the offender $1900.

    The fourth and fifth supplies are contained in a Form 1. Both of those were supplies on 22 December 2016. The first involved a supply of 54.2 grams of a different form of MDMA, in fact, it was a form of MDA, at a purity of 48%.

    The second involved a supply by the offender of 2.74 grams of cocaine. On this occasion, the undercover operative “Ronnie” met the offender in the same carpark. It had been agreed that Ronnie would attend for the purposes of the offender supplying him with MDMA or MDA. The offender handed “Ronnie” a resealable plastic bag containing two bags of MDA and four smaller plastic bags containing cocaine. “Ronnie” handed the offender $7,600 in exchange.

    The sixth supply took place on 10 January 2017 and involved the supply by the offender of 84 grams of MDMA at a purity ranging between 35 and 43%. On that occasion, “Ronnie” made a phone call to the offender and it was arranged that the offender would supply MDMA or MDA to “Ronnie”. The offender told “Ronnie” that he was in New Zealand and would arrange for an associate to facilitate the supply of those drugs. Later that day, at about 5.50pm, “Ronnie” received a phone call from a unknown female. “Ronnie” gave that person directions to his location at the same carpark in Wollongong.

    On that occasion, “Ronnie” was introduced to the co-offender, LP. The offender was on speakerphone from New Zealand. The offender informed “Ronnie” on the telephone during the call that he had arranged for LP to facilitate the exchange. “Ronnie” was then handed three knotted plastic bags containing MDMA. He exchanged those drugs for $7,700.

    The seventh and eighth supplies took place on Thursday 9 February 2017. They involved the supply by the offender of 111.7 grams of MDMA at a purity ranging between 31% to 33.5%, and an offer to supply by the offender 10 grams of MDMA.

    On that occasion at about 7pm, “Ronnie” met again with LP at Panorama House. The meeting had been prearranged for the purpose of LP supplying “Ronnie” with four ounces of MDMA or MDA. LP approached “Ronnie” and handed him four knotted plastic bags, each containing a beige coloured compressed powder. “Ronnie” handed over to LP $10,000. At this time, agreement was made between LP and “Ronnie” for a price to be sought for supply for a quarter of a kilogram.

    Whilst speaking with LP, a call was made to the offender. A discussion took place regarding the price and future supplies. LP informed “Ronnie” that he usually supplied to the offender, but because the offender was in New Zealand, he was supplying directly.

    A discussion took place regarding the poor quality of a previous supply of cocaine for which “Ronnie” expressed a desire to be compensated. LP then phoned the offender and “Ronnie” expressed a desire to be compensated. LP then phoned the offender and “Ronnie” reminded the offender of the prior issue. The offender offered to supply 10 grams of MDMA to make up for the poor product quality. LP then informed “Ronnie” that after he left Panorama House, he was required to “drop of his share to his missus”, referring to the offender.

33. I am to have regard to factors including those set out in paragraph 13.1.1(1) of the Direction. Mr Bousheri observed during the hearing that he was sentenced on agreed facts, and added nothing further to my understanding of the circumstances of the offending, other than by stating that he became involved in the offending in order to receive drugs for his own use, and had continued to be involved in arranging the supply of drugs from new Zealand because he thought he was doing “Ronnie” (the undercover Police officer) a favour.  He says he received no compensation for his continued involvement in the supply of illicit drugs to “Ronnie” from New Zealand.

34. Later in the sentencing remarks, Judge Harris described Mr Bousheri’s role as a low to mid-tier dealer, and identified the objective seriousness of the offending (for her Honour’s purposes of sentencing) as ‘only slightly below mid-range’.  Her Honour described Mr Bousheri’s criminal history as unblemished (disregarding the traffic offences) and appears to have accepted of a psychologist, recounting the history provided by Mr Bousheri, that he had become involved in the supply of drugs to support his own addiction, which he had overcome by the time of his arrest by going ‘cold turkey’ in New Zealand. Her Honour accepted Mr Bousheri was genuinely remorseful for his conduct and found his prospects of rehabilitation to be very good.

1. In considering the nature and seriousness of the applicant’s criminal offending, I recognise that none of the specific examples of kinds of offences mentioned in the Direction as being particularly serious are applicable.  Mr Bousheri’s offences are neither violent nor sexual crimes, nor crimes against vulnerable members of society nor officials undertaking their duties.  Mr Bousheri also drew attention to this in his submissions.  As I observed to Mr Bousheri however, I do not view the list of offences at item 13.1.1. (1) (a) to (c) as providing an exhaustive list of what is to be viewed as serious.  Mr Bousheri did not quibble with my further observation that I was likely to view the commercial supply of illicit drugs as a serious crime notwithstanding it is not specifically mentioned in the Direction among the crimes to be viewed very seriously.

2. Further as to this, I am to take into account the sentence imposed by the court for the crime.  While I recognise that her Honour made a number of observations favourable to Mr Bousheri in her remarks, including as to his prospects at rehabilitation and unblemished criminal record, it cannot be denied that the sentence imposed nonetheless demonstrates the seriousness with which the court viewed the offending.  As mentioned above, despite the factors viewed favourably by the court, the court imposed a sentence of three years imprisonment.

3. I view Mr Bousheri’s offending as very serious given its nature and given the sentence imposed by the court.

4. I note that it cannot be said that Mr Bousheri’s criminal history shows a trend of increasing seriousness, given his convictions were imposed from a related series of supplies dealt with together.  It is of concern however to see that the volume and value of illicit drugs being supplied was increasing during this course of criminal conduct, but I accept, as did the court, that by the time of Mr Bousheri’s arrest two years later his involvement had ceased.  Mr Bousheri is not a repeat offender, and so the issue of previous warnings is not applicable.  I have no adverse information arising out of Mr Bousheri’s conduct while in detention generally.

   The risk to the Australian community should Mr Bousheri commit further offences

5. Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, I must have regard to, cumulatively:

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

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

6. The Respondent refers to the well documented devastation inflicted on the community as a result of the production, distribution and use of ecstasy and cocaine.  I proceed on the basis that should Mr Bousheri engage again in further criminal conduct as a ‘low to mid-tier’ drug dealer, the nature of the harm to individuals or the Australian community as a whole would be grave.

7. However, I do not think it is very likely that Mr Bousheri will engage in conduct of this nature again.  There is nothing before me to contradict the view expressed by Judge Harris that Mr Bousheri’s prospects of rehabilitation are very good, noting particularly that it appears to have been accepted that Mr Bousheri had overcome his own drug addiction well before his arrest, and this had been the force motivating him to participate in the crimes.

8. In fact, the evidence before me further indicates that Mr Bousheri has made good use of the opportunities available to him while in prison to attend to his rehabilitation.  I accept Mr Bousheri completed the ‘Gurnang Life Challenge Program’ which I note from the program description on the reverse of his completion certificate was an extensive program.  Mr Bousheri told me during the hearing that a very low proportion of participants are able to complete the program.

9. Mr Bousheri has also submitted that he has completed the ‘EQUIPS’ young offenders program, but was not eligible to participate in any further programs because he has been assessed as presenting a very low risk for re-offending through his ‘LSIR score’.  This is corroborated by records from NSW Corrections.

10. I have also taken into account the report of Therese Davies, Psychologist.  This report was referred to by the sentencing Judge.  The report identified depression, likely to be situational in part and attributable to incarceration, anxiety and ADHD.  The report attributes Mr Bousheri’s drug addiction to this underlying symptomatology, and his offending behaviour followed.  The psychologist thought Mr Bousheri had good prospects of rehabilitation because of his family orientation, strong work ethic and his capacity to give up drugs on his own.  Mr Bousheri told the Tribunal that he is now undergoing treatment with medication for his ADHD.

11. I have taken into account witness statements made by Mr Kumar, Mr Odicho, and Mrs Bourne. These witnesses were not required to give oral evidence to the Tribunal.  I accept that these witnesses were each surprised to learn of Mr Bousheri’s offending and would support him in various ways if he were permitted to remain in Australia.

12. The Respondent submits that Mr Bousheri’s rehabilitation has not been tested in the community, and while this is true insofar as it relates to the period after his arrest, I consider that the evidence before me points firmly towards the conclusion that Mr Bousheri represents a low risk of repeating his criminal conduct.  In that context, I think that the risk Mr Bousheri presents to the Australian community is low, because he is unlikely to reoffend.

13. Generally as to this first primary consideration therefore, while I have formed the view that Mr Bousheri’s conduct was serious, and demonstrates that he has manifestly failed to meet the expectation that he is to abide by Australian laws as a non-citizen in Australia, the risk he presents to the Australian community is reduced by the low risk he presents of repeating his criminal conduct.  Having regard to the seriousness of his conduct however, I consider that the first primary consideration nonetheless weighs against revoking the visa cancellation.  To put this another way, I do not consider the low risk of recidivism carries so much weight that it outweighs the fundamentally serious and adverse nature of Mr Bousheri’s criminal offending.

    The best interests of minor children in Australia

14. The second primary consideration which I need to turn my mind to is the best interests of minor children in Australia.  In Mr Bousheri’s case, there is only one such child identified, his niece, “R”.

15. Paragraph 13.2 of the Direction provides the following guidance:

    (1)Decision-makers must make a determination about whether revocation is in the best interests of the chid.

    (2)This consideration only applies if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

    (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    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 period of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

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

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

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

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

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

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

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

16. The last time Mr Bousheri saw “R” in person was in New Zealand when they both lived there.  Her mother, Ms Ranjbar, (Mr Bousheri’s sister) explained in her evidence that she and her husband had lived with Mr Bousheri and their mother as she had “R” quite young and was still studying towards her university degree in psychology.  She explained that Mr Bouhseri and “R” therefore had a very close relationship because he had been present during her infancy.

17. “R” has subsequently migrated to Australia with her parents and lives in Melbourne. Mr Bousheri sees “R” regularly when she is present with Ms Ranjbar for video calls. Mr Bousheri told me that “R” will often ask him when he is going home, and when will she visit him at his house.  As to how Mr Bousheri has made a  positive difference to “R”, Mr Bousheri  explained that as his parents had left Iran, the family have no extended relatives such as cousins.  He said he would take “R” shopping and looked after her on occasions.

18. “R” is the only minor child in Australia, and so the only relevant child for this primary consideration, but by way of comparison I also asked Mr Bousheri about his relationship with his other nieces who currently live in New Zealand. Mr Bousheri said he is close to all his nieces and treats them the same.  He sees his two nieces regularly during longer video calls, and they lived nearby when he was in New Zealand.

19. I accept that the nature and duration of the relationship between Mr Bousheri and his niece “R” is close and significant.  It is however neither parental nor quasi-parental in nature, and it is typical of a relationship between niece and uncle in a close and functional family.  “R”’s parents fulfill parental roles in relation to her.  While positive relationships between nieces and uncles of this nature are to be valued and are important to children, they do not carry either determinative or significant weight as a primary consideration in my view.

20. I do not consider that the effect that any separation of Mr Bousheri and “R” would have a particularly adverse impact on “R”, noting that Mr Bousheri and “R” could maintain contact with each other in a way similar to the current arrangements.  Furthermore, I note that the family have generally demonstrated a capacity and willingness to travel between Australia and New Zealand, and adequate personal contact could be achieved between Mr Bousheri and “R” in this way if personal contact was considered to be sufficiently important to “R”.

21. I accept the evidence of Ms Ranjbar and Mr Bousheri to the effect that “R” enjoys seeing her uncle on the video link, and has made remarks indicating she wants to see him in person. I presume that “R” would prefer to have Mr Bousheri remain in Australia.  As “R” is young and Mr Bousheri does not have a parental role in respect of her, I do not accord significant weight to the views I presume “R” would express if she was asked.

22. There is no evidence raising any adverse impact on “R” of Mr Bousheri’s conduct.

23. As “R” now resides in Australia, and her relationship with Mr Bousheri is plainly a positive one, I consider that her best interest would be served by the visa cancellation being revoked.  However, as the relationship between Mr Bousheri and “R” is not parental, and because I am not satisfied that there is any particular difficulty in “R” also maintaining adequate and positive contact with Mr Bousheri if he were to be removed to New Zealand via video and telephone contact, and occasional visits in New Zealand, I place little weight on this primary consideration in all the circumstances.

    Expectations of the Australian community

24. Paragraph 13.3 of the Direction provides 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. Non-revocation may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

25. I note, as explained in Afu and Minister for Home Affairs [2018] FCA 1311, and now FYBR v Minister for Home Affairs [2019] FCAFC 185 the concept of community expectations is not a matter to be measured as though it is a provable fact, but rather an assessment of community values made on behalf of the community by the executive government. I am obliged to consider this factor in line with the norms expressed in the Direction.

26. In this regard, the Principles espoused at item 6 of the Direction specify that the Australian community expects the Australian government to cancel visas if a person commits a serious crime in Australia. The Principles further provide that Australia has a low tolerance of any criminal conduct by people who have been participating in and contributing to the Australian community only for a short period of time.  It is also observed that Australia has a low tolerance  of any criminal conduct of those holding a ‘limited stay’ visa, reflecting that there should be no expectation that such people should be allowed to come to and remain permanently in Australia. Putting to one side whether a subclass 444 visa is properly understood to be a ‘limited stay visa’ (it provides for an indefinite stay, but as in Mr Bousheri’s case is also used by New Zealand citizens for short stays), I give weight to the point made in the Principles that there should be no expectation that ‘such people’ (who engage in serious criminal conduct) should be allowed to remain permanently in Australia.  Similarly, the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for family members in Australia are to be taken into account.

27. In my view, the Direction establishes that the Australian community would expect Mr Bousheri’s visa to remain cancelled.  I consider that Mr Bousheri has spent only a limited period of time in Australia, and during that time contributed very little.  In this regard, I take into account the previous subclass 444 visas held by Mr Bousheri, having noted that the visa that was the subject of cancellation was granted at the border presumably moments before his arrest.  I consider that the Directions enunciate the principle that having committed a serious offence in Australia in these circumstances, Mr Bousheri can have no expectation that he will be permitted to remain here permanently. 

28. I place significant weight on the expectations of the community that the visa remain cancelled.

    Other considerations: strength, nature and duration of ties

29. When considering the strength, nature and duration of ties to Australia, I must have regard to:

    (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.

    (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).

30. As mentioned above, Mr Bousheri has not spent a large amount of time in Australia.  The longest duration of his stay in Australia was the period of one year and nine months when he committed his offending.  Except for two short visits to Australia, Mr Bousheri has then resided in New Zealand for the following two years prior to his arrest.  Mr Bousheri also told me during the hearing that on the occasion of his arrest, he had intended to remain in Australia for only two weeks, and was then required back at work in Auckland.

31. In these circumstances, but for the circumstances of Mr Bousheri’s sister and brother in law, and the aspirations of other members of the family, I would give almost no weight to Mr Bousheri’s ties to Australia.

32. I accept however that Ms Ranjbar and her family have migrated to Australia now, and it has unfortunately not been a smooth process with the circumstances of the COVID-19 pandemic.  I also accept that Mr Bousheri’s brother and sister-in-law also genuinely intend to migrate to Australia and will do so regardless of the outcome of this review.  In this regard, Ms Kendahl Ranjbarboushehri gave detailed evidence of her family’s plans to relocate to Victoria, and to bring Mr Bousheri’s mother with them.  I further understand and accept that it is generally intended that Mr Bousheri’s other sister will also migrate to Australia when her health and the circumstances of the COVID-19 pandemic permit.

33. I give some weight to the ties Mr Bousheri therefore has with Australia though his sister and her family who have already migrated to Melbourne.  I have followed and understand the concern of the family and Mr Bousheri as to Mr Bousheri’s predicament should the rest of the family migrate to Melbourne in circumstances where visa cancellation will mean that he is removed from Australia, and it may be safely presumed that he will not be granted another visa for Australia in the foreseeable future.

34. The question then arises as to what weight is to be attached to what are, essentially, aspirations of the other family members to migrate to Australia.  Having heard from Ms Ranjbar and Ms Ranjbarboushehri, I accept that the aspiration is genuine and is no mere self-serving contention.  I accept that there are in place genuine plans for Mr Bousheri’s brother, sister, sister in law, nieces, and mother to migrate to Australia as soon as the circumstances of the COVID-19 pandemic permit.  But it is also the case that these people are not in Australia now.  It is difficult in these circumstances to see their aspirations as constituting a relevant tie to Australia for Mr Bousheri.

35. The Respondent contends that I may take into account these aspirations as relevant to Mr Bousheri’s ties to Australia, but I should place very little weight on such ties.  I place some weight on Mr Bousheri’s ties to Australia through his sister, Ms Ranjbar, and her family, but otherwise accept the Respondent’s contention that little substantive further weight is to be attached to the aspirations and plans of the other family members.  I revisit this issue in relation to impediments facing Mr Bousheri upon removal.

36. I have also taken into account the social ties Mr Bousheri has with people residing in Australia through the statements of Mr Kumar, Mr Odicho, and Mrs Bourne.   These social ties do not substantively change the weight I attach to this consideration.

    Other considerations: impact on victims

1. There has been no evidence provided to the Tribunal addressing the impact of a decision not to revoke the visa cancellation on any victims of Mr Bousheri’s offending.  It appears from the sentencing remarks that Mr Bousheri’s offending was conducted under the surveillance of Police in the context of a Police operation.  I presume the illicit drugs did not find their way to victims. Nonetheless, I would not view Mr Bousheri’s offending as a victimless crime.  The harm of engaging in the supply of illicit drugs on a commercial basis can readily be seen to attach to unknown and potential victims.   However, I have already formed the view that Mr Bousheri ’s offending was serious by nature and placed substantial adverse weight on this conclusion.  I place no further adverse weight on this consideration.

   Other considerations: extent of impediments if removed

2. Mr Bousheri would be removed from Australia to New Zealand.  Mr Bousheri is a New Zealand citizen by birth and has grown up and been educated in New Zealand. On balance, and putting to one side the aspirations of his currently New Zealand-based family members to migrate to Australia, the balance of Mr Bousheri’s ties are firmly with New Zealand. At the time of Mr Bousheri’s last travel to Australia, he held full time employment in New Zealand, although I suspect (as Mr Bousheri does) that employment is no longer available to him.

3. Nonetheless, having regard to Mr Bousheri’s age and health, the absence of any language or cultural barriers and the current presence of close family in New Zealand, I consider there is no impediment facing Mr Bousheri  if removed.  Noting the evidence given by Mr Bousheri as to the medical treatment he now receives to address his ADHD, I take on notice that medical care in New Zealand is similar to Australia and he will face no difficulties in continuing his treatment.

4. This factor weighs against revoking the visa cancellation. 

5. I have also turned my mind to the evidence given by the family as to their concerns should Mr Bousheri be prevented from returning to or living in Australia should the rest of the family migrate.  I accept that if this were to come to pass it will be very difficult emotionally for Mr Bousheri. I place some weight on this difficulty, but note again that Mr Bousheri’s family have demonstrated capacity for travel between Australia and New Zealand.

6. While the potential for Mr Bousheri to find himself isolated from his family in New Zealand is real and significantly adverse to him, I do not consider any difficulty in this regard weighs substantially in favour of revoking the visa cancellation.

   Other considerations: International non-refoulement obligations and Impact on Australian businesses

7. Mr Bousheri’s has raised no concerns regarding Australia’s non-refoulement obligations, and nor are any reasonably apparent in respect of New Zealand. Similarly, no evidence has been provided putting Australia’s business interests in issue in this review.

   ASSESSMENT

8. The Respondent contends that Mr Bousheri’s offending was serious, and his rehabilitation has not been tested.  The Respondent further contends that the only relevant child in Australia is “R”, and her best interests should not be afforded substantial weight as Mr Bousheri has not played a parental role in respect of her, and he can maintain his relationship with her from New Zealand.

9. The Respondent contends that Mr Bousheri has failed to meet the expectations of the  community to abide by the law, and as a consequence the community would expect his visa to be cancelled.

10. The Respondent contends that very little weight should be given to Mr Bousheri’s limited ties to Australia and the aspirations of his currently New Zealand-based family to migrate to Australia.  The respondent contends that in the face of no real impediment to returning to New Zealand, there is no other reason why the visa cancellation should be revoked.

11. Mr Bousheri points to the good prospects of his rehabilitation as observed by the sentencing judge.  Mr Bousheri emphasised his remorse at his offending.

12. Mr Bousheri’s primary concern was clearly that he may find himself isolated in New Zealand if his family proceed with their intentions to migrate to Australia.  Mr Bousheri is concerned that if he is isolated in this way, his mental health may deteriorate.

13. I am to form my view as to whether there is another reason to revoke the visa cancellation by reference to the Ministerial Direction.

14. I have formed the view that Mr Bousheri does not present a substantial risk of repeat offending, and in that sense does not present an unacceptable risk to the Australian community. Nonetheless, I view his offending as very serious and am mindful that it represents a fundamental failure to meet the expectation that non-citizens abide by Australian laws.

15. For the reasons elaborated upon above, I have also formed the view that the Australian community would expect me to cancel the visa of a person who engaged in serious criminal offending in circumstances where he had spent very little time in Australia and has only limited ties.  I accept that there should be no expectation on Mr Bousheri’s part that he would be permitted to remain indefinitely in Australia in light of the offences he has committed here.

16. I see limited countervailing weight in recognising the interests of his niece, “R”, to have Mr Bousheri reside in Australia.  Likewise, I see limited countervailing weight in the limited ties Mr Bousheri has with Australia and the aspirations of his family in New Zealand to migrate here.  Having made that observation however, I recognise that if Mr Bousheri finds himself to be the only member of his family who may not travel to Australia and / or reside here indefinitely, it will cause emotional hardship.

17. Having taken all of the factors into account, I have decided that even though Mr Bousheri  presents a low risk to the community through his low risk of recidivism, the seriousness of his offending, the expectations of the community and the limited nature of his ties to Australia combine to deprive his circumstances of presenting any other reason to revoke the visa cancellation.

18. For the reasons expressed, I find that there is not another reason to revoke the visa cancellation.  I affirm the decision under review.

89.     I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy

..............[sgnd].................................

Associate

Dated:

Date of hearing:	10 September 2020
Representation for the Applicant:	Self-represented
Representation for the Respondent:	Ms Ada Wong of Mills Oakley