El Khoueiry and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3577
•6 October 2021
El Khoueiry and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3577 (6 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4896
Re:Paul El Khoueiry
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:6 October 2021
Place:Adelaide
The decision under review is affirmed.
.............................[Sgnd]................................
Senior Member J Rau SCCATCHWORDS
MIGRATION – refusal of application for Class BB Subclass 155 Five Year Resident Return visa under section 501(1) – where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – offences involving the trafficking of dangerous drugs – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
6 October 2021
INTRODUCTION AND BACKGROUND
The Applicant was born in Madrid, Spain and is 37 years of age. At the time of his birth, his parents were Lebanese nationals. He is a citizen of Lebanon. On 1 December 1999, (aged 15) he came to Australia with his mother and two younger brothers. Until its cancellation on 23 April 2020, the Applicant held a Class BB Subclass 155 – Five Year Resident Return visa which was issued on 4 May 2017 (the “Visa”). But for brief travels overseas to Kuwait and Lebanon in 2006, Lebanon for Christmas 2017-18 and Greece in 2018, he has lived in Australia since 1999.
The Applicant’s family are Lebanese Catholics. His mother left Lebanon to escape an abusive husband. They spent some time in Cyprus, Scotland, and South America before coming to Australia.
The Applicant attended school in Adelaide up to year 11. He commenced an Information Technology course at TAFE but did not finish it. He has completed various TAFE courses including, Certificate III in Hospitality, Certificate III in Logistics, and Certificate III in Mechanics. He has since done various self-improvement courses.
The Applicant’s employment history is patchy. In his words, “I have had gaps in my employment where my drug use got too heavy for me to keep a job, and when I have been in jail.”[1] He was last employed in 2017.
[1] Exhibit 3, Attachment D9, p 100.
The Applicant began his involvement in the drug sub-culture in 2005, at around the age of 21. He started using ecstasy and became a heavy user, “taking five pills, five nights a week”.[2] He started using methamphetamine (“ice”) when he was about 24 years of age. Aside from his periods of incarceration and a period from late 2016 to the end of 2017, he has been a heavy drug user for most of the last 16 years. There is a clear association between his drug abuse, his involvement in the drug sub-culture and his offending. He has insight into this fact. He has also had a gambling addiction that has left him short of money to pay drug debts from time to time. He denied having gambling debts as such.
[2] Ibid, p 102.
The Applicant’s mother, Ms Rizk was called to give evidence. She was a very impressive witness. To the extent that there were differences between her evidence and the Applicant’s evidence, I accept her evidence as being more reliable. Ms Rizk told the Tribunal that she was not initially aware of the Applicant’s drug problem when it first began. From her perspective, it manifested itself as her son behaving badly. He would come home very late and he was difficult to get on with. She found dealing with him stressful and frustrating. It was in this context that her father, the Applicant’s grandfather, arranged for him to go to Cairns in 2005 and work with a friend of his. This plan was no doubt intended to provide both relief to Ms Rizk, and to hopefully get the Applicant back on track.
An Australian Criminal Intelligence Commission report indicates that the Applicant was convicted on 20 September 2005 of breaking into premises in Cairns.[3] In evidence the Applicant said that at the time he was affected by alcohol. According to Ms Rizk, her father’s friend in Cairns began complaining about the Applicant’s behaviour and he soon returned to Adelaide.
[3] Ibid, Attachment A, p 39-43.
The Applicant has an extensive criminal record across three States, commencing in 2005. The Applicant’s offending history is set out at “Annexure B”.
The Applicant told the Tribunal that he has been consistently encouraged by his mother to give up drugs and to get away from his drug using associates. Ms Rizk confirmed this in her evidence, however it seems that early on, she was not fully aware that his behaviour was associated with his drug taking. There are many occasions over the years, when intervention by his mother occurred in an attempt to break his association with the drug sub-culture. She has tried very hard to help him, but he has to date, however, consistently disappointed her.
In mid-2006, with encouragement of his mother, the Applicant travelled to Lebanon with his brother Peter, to break his connection with his drug taking associates in Adelaide. At the time, the Applicant had several relatives on his mother’s side, who were still living in Lebanon. His stay there was cut short by military actions on the border with Israel, resulting in the Australian Government arranging for Australian nationals and permanent residents to be removed and returned to Australia. The Applicant returned to Australia on 8 July 2006.[4]
[4] Ibid, Attachment D17, p 137.
A South Australian Police Apprehension Report records the Applicant as being involved in a fight in the early hours of the morning on 29 January 2007:
“At about 1:10am on Monday 29th January 2007 Police observed the accused in this fighting with another male in Chappell Drive, GLENELG. Both males were exchanging punches with clenched fists in the middle of the road. Police subsequently restrained and arrested both males for Fighting in a Public Place.
……
…continued exchanging punches. Police subsequently restrained both males and arrested them for Fighting in a Public Place.”[5]
[5] Exhibit 4, p 251.
South Australian Correctional Services records contain a note written on 28 September 2007 which states, amongst other things:
“Paul stated that he has cut back his amphetamine use but still uses occasionally with friends.”[6]
[6] Ibid, p 591.
Further, South Australian Correctional Services records contain a note written on 7 August 2009 which states, amongst other things:
“Paul stated that he was using drugs (meth) daily at one point and gambling. He has plans to decrease his substance abuse, however, he wishes to do this on his own without supports… Future goals were discussed with Paul with ways of ensuring he has supports but Paul was not ready to pursue this at this stage.”[7]
[7] Ibid, p 586.
South Australia Police Department records indicate that the Applicant was then apprehended by police at about 3:15AM on Thursday, 8 April 2010 and found to be in possession of a trafficable amount of a controlled drug.[8] This matter eventually came on in the District Court of South Australia on 9 March 2011. In preparation for that hearing, the Applicant’s then legal representatives arranged for the Applicant to see a consulting psychologist, Dr Cayley.
[8] Ibid, p 281.
Dr Cayley prepared a report dated 22 December 2010 which relevantly contains the following passages:
“Mr El Khoueiry reported that he lived in the family home until he was 22 and that he had lived independently since that time.
Mr El Khoueiry reported that following his parents’ separation he had no contact with his father until about two years ago, when he went for a holiday and saw him. He stated that he has some telephone contact with his father at this time but tries to avoid his phone calls if he can.
……
Mr El Khoueiry stated that he has been in a relationship with his current partner for some two years. He reported that his partner has two children, aged 10 and seven, who live with their father but that she has some contact with them. Mr El Khoueiry reported that they have no children together…..
Mr El Khoueiry reported that he previously associated with drug users and at this time he is trying to “cut those people out of his life”.
……
He stated that he has approximately $5000 in debt to drug dealers and $3800 in credit card debt for furniture. He stated that there were also other smaller bills such as utilities. Mr El Khoueiry stated that his mother is providing financial support to him at this time and has been helping to pay the rent. He reported that this is on the condition that he makes a significant effort to “fix up his life”.
……
…he attended secondary school in Cyprus, Scotland, South America and Adelaide. He stated that he completed Year 11 at St Ignatius College… Mr El Khoueiry stated that when he left school he began a Diploma of Information Technology and completed half of the three-year course before he “lost interest”. He reported that he had also completed courses as a barista, in hospitality and in gaming in 2003 and 2004.
Vocational History
…He stated that in 2007 he worked for almost a year… in 2009 he was employed as a production worker for a computer company for about seven months… receiving Newstart Allowance since January 2010…
……
He stated that he believes that he needs to address issues such as the type of company that he chooses and how to re-establish positive relationships with his family who he has tended to push away.
……
…as he is feeling a lot of pressure at this time and is trying to “fix up his life”.
……
Mr El Khoueiry reported that he used ecstasy from the age of 21 on approximately 5 days each week. He stated that he would use five pills per night at a cost of $30 each for at least 3 years. Mr El Khoueiry stated that he liked ecstasy because he “enjoyed the feeling”.
……
Amphetamine Use
Mr El Khoueiry reported that he began using amphetamines at the age of 24 and would smoke the drug on a daily basis
……
He stated that he had seen him on about 4 or 5 occasions to date and that he is able to continue to see him on a regular basis.
……
Mr EL Khoueiry reported that he had no previous history of offending of this nature although he had been previously convicted of driving matters.
……
Mr El Khoueiry’s overall intelligence was assessed as falling within the “average” range…
……
The result for his verbal skills is not surprising given that Arabic is his first language, although he reported that his primary schooling was both Arabic and English.
……
Mr El Khoueiry is to be commended for his personal efforts towards rehabilitation. If he is able to continue to access professional assistance to assist him to remain drug free, he is more likely to be able to attain his goal of “fixing his life up”.[9]
[9] Ibid, p 551-561.
On 9 March 2011, the Applicant was sentenced before Her Honour Judge Bampton of the District Court (as she then was). Her Honour relevantly made the following comments:
“The circumstances of your offending are that on 8 April 2010, police searched your vehicle and found a plastic bag containing 100 tablets, a set of digital scales, a large quantity of unused plastic bags and $920 in cash. The tablets were later analysed and found to contain a total of .28 g of methamphetamine. You told the police the tablets were yours, that they were ecstasy, that they were for your own use and that of a friend.
Two days later, on 10 April 2010, police searched your home pursuant to a drug warrant. Police found seven cannabis plants growing hydroponically in your garaged and two small cannabis plants growing in pots in the backyard, in your bedroom please found a plastic bag containing 93 tablets. These tablets were also later found to contain .28 g of methamphetamine.
……
You have been undergoing counselling at Centacare in relation to your drug use, and you plan to also discuss lifestyle and family issues with your counsellor.
………
I have had regard to a letter from a worker in the SA Police Drug Diversion Program. Mr Drever reports that you have a significant drug problem, particularly with the use of ice or crystal methamphetamine. Mr Drever says that you have made it clear to him that you have recognised that you need to turn your life around and that you have the motivation to do so.
……
Your mother is very supportive of you and has also given you assistance to pay off some very serious drug debts you have incurred. Your mother is very keen for you to break the ties with the bad influences in your life, and would like you to go to Lebanon to live with your father to further your rehabilitation.
……
I would have sentenced you to 3 years imprisonment. I reduce that to 20 months imprisonment on account of your early guilty plea and other relevant matters. I set a non-parole period of 10 months. I now turn to the question of suspension.
……
You have demonstrated that you are prepared to commit to a program of rehabilitation by starting the home detox program. Your partner is undertaking the program with you. You have the support of your mother.
……
I am satisfied that good reason does exist to suspend your sentence.
I therefore suspend the sentence of imprisonment on the condition that you enter into a bond in the sum of $500 to be of good behaviour for two years.
……
If there is any further offending it is very likely that you will have to spend time in gaol, so I urge you most strongly to take this opportunity to get your life on track, stay away from the nightclubs and drugs, continue doing the home detox if you started it. You are very lucky to have a mum who is supporting you so strongly. Good luck.”[10]
[10] Exhibit 3, G24, Attachment D18, p 139-143.
The Applicant gave assurances that he was not going to relapse into drug use, and he received warnings from the bench about the consequences to him if he did. The Applicant conceded in his evidence before the Tribunal, that he did not complete the detox programme. He also returned to drug use.
The Applicant’s mother made arrangements for him to go to Lebanon to get away from bad influences. This went so far as her buying him a ticket and actually taking him to the airport to board a flight. The Applicant refused to go, got out of the car at the airport and caught a taxi home. This episode is evidenced in Department of Correctional Services notes. A record dated 20 April 2012 states amongst other things:
“Offender was shot on 28/04/11 and received non-life-threatening injuries to the calf. Travel application requesting permission for offender to move to Lebanon to protect his safety was approved on 04/05/11. Offender subsequent he decided on 09/06/11 that he did not want to travel to Lebanon and had only made the application to please his mother.”[11]
[11] Exhibit 4, p 573.
Ms Rizk gave evidence that at that point in time she was happy for the Applicant to return to Lebanon because the political situation there was reasonably stable, and she had a number of relatives residing there who could look after him and assist him.
On 23 April 2011, an associate of the Applicant, to whom the Applicant owed a drug debt of $100, visited his home to collect his money. Only the Applicant's then partner was at home. The associate threatened his partner, putting a knife to her throat, before leaving with a television in satisfaction of the debt. The Applicant took a tomahawk and went to get his television back. He did not use the weapon but was shot in the calf by his associate in the episode.
South Australian Correctional Services records contain a report dated 29 July 2011. This makes it clear that the Applicant was continuing to use amphetamines whilst under the supervision of Correctional Services and despite warnings:
“Appears that despite being directed to engage with AOD counselling at Centacare Wakefield Street Paul has not done so. Paul confirmed that he still had the phone no. CM directed Paul to make contact with Centacare prior to next report… DOC = methamphetamines. Paul advised that his use has reduced fm daily to him now trying not to use but when he does he goes on 3 day “benders”… CM formed the impression during supv that Paul may have been under the influence of methamphetamines today as he appeared to have difficulty sitting still, was unable to look CM in the eye, and was drinking an energy drink during supv. CM noted that Paul has hd the benefit of 2 prior warning ltrs. CM reminded Paul that if final warning ltr sent and he failed to comply both bonds would be returned to court.”[12]
[12] Ibid, p 579.
A Correctional Services report dated 5 August 2011 details further issues with compliance and motivation to engage with detoxification:
“Paul reported 45 min after his scheduled time. CM hd recd a tel msg that Paul called at 11.15am to advise wld be 5 min late. Paul stated he was waiting for lift. CM queried why did not call prior to 11.00am. He sd he didn’t know his lift would be late. CM indicated that further problematic reporting compliance wld not be tolerated and that he needed to report at his scheduled time. MC queried Centacare AOD intervention. Paul stated he was advised that he was not suitable for detox program as he did not have a non-user support at home. CM queried need for detox and what was current use. Paul initially stated that sometimes he did not use for 2 weeks and then wld use for a week. CM indicated that if that the case not in need of detox but rather AOD intervention to address his drug use. After prompting Paul advised that he was a daily user of up to 1/2 gram per day and that his partner’s use was the same. Cm provided Paul with DASSA referral card and directed Paul to make contact prior to next report. CM noting that Paul risking 23 mth sentence if bond non-compliance resulted in the suspended sentences being revoked. CM discussed her concern particularly in the light of the alleged reoffending of 27/7/11 that Paul was not motivated to address his drug use at this time. CM indicated that if current behaviour continued there was a high probability that he wld be in breach of his bonds (x 2).”[13]
[13] Ibid, p 578.
A “Detailed Occurrence Report”, prepared by SAPOL, contains details of a complaint by the Applicant’s then domestic partner, of an assault occurring on 9 August 2011. Relevant particulars are as follows:
“On 09/08/2011, Forensic Officer BURNSIDE (29726) conducted a forensic examination at […]. Forensic Register Number FR146314 refers. DNALOC Attended multi-occupancy residential block. Liaised with 2EAV20 (DOWNS) – alleged aggravated assault took place earlier – female victim assaulted and threatened with firearms. In presence and direction of IO KEPKA (74365), took photographs of bruising to neck and upper chest area of victim […]. General photographs of wooden framed .22 rifle wrapped in blanket located to rear of premises. Contact DNA swab of firearm. This firearm contained no magazine or bolt action. General photographs of black .380 semi-automatic pistol, located in rear yard of premises at fence line. Firearm contained 3 x bullets in magazine – no bullet in breech. Contact DNA swab of firearm…”[14]
[14] Ibid, p 446.
On 10 August 2011, the victim provided further information to police in the following terms:
“At about 0940hrs Police (MORELLA / MARNANE) attended at to speak with […]. She had been asleep on the couch.
She states that EL KHOUEIRY took meth on the weekend and had been awake for four or five days. She states that they have been together for about four or five years and that she had not been assaulted to this extent before. She states that stuff had happened previously but it was more mental. She states that the mental stuff is worse than the physical and sometimes she just wishes that he would knock her out so she didn't have to deal with the mental stuff.
She states she is over the drug and guns seen and that she has stopped taking drugs herself.
She states she called the police because she wanted him out of the house.
Offered emergency accommodation but this was refused. She states she is sick of moving and isn't concerned for her safety.
She states that she does not want to get back with EL KHOUEIRY. She states she wants to reconnect with her children (10 and 9 years from a previous relationship.)
She also stated that she feels isolated. She advised that she had a knife held to her throat the day that EL KHOUEIRY was shot in the calf. This matter is pending through court. She agreed that she hasn't dealt with the situation and would like counselling.”[15]
[15] Ibid, p 447.
Eventually, on 31 August 2011, the victim advised police that she did not wish to proceed with charges against the Applicant “because it doesn’t happen often and the accused isn’t a bad person”.[16] This note, and the record from 10 August 2011 (above), suggest that this reported instance of family violence was not unique. It is also clear that the reason for withdrawal of the charges, as often occurs in these cases, was the victim’s continuing relationship with the Applicant. There is no suggestion that the family violence did not occur. The Applicant denied that there were any other occasions of domestic violence. He stated that he was not a violent person. I note that he has no convictions for crimes of family violence.
[16] Ibid, p 445.
The Applicant however, admitted this incident in his evidence. He said that his assault on the victim occurred in the course of him trying to stop her from damaging his laptop computer.
On 1 May 2012, the Applicant was back before a judge of the District Court of South Australia, this time Judge Muecke. On this occasion he was charged with firearms offences arising from the incident on 9 August 2011. His Honour referred to the circumstances of the previous sentence imposed by Judge Bampton and then proceeded to deal with the matters before him. Some relevant remarks include the following:
“About a month later, on 7 April 2011, you signed another bond, this time in Elizabeth magistrates Court. This was a bond to support another sentence of imprisonment which was suspended. This sentence was for imprisonment for three months and it related to driving offences were committed in April and September 2010. This bond was to be of good behaviour and was for a period of 12 months. The magistrate who gave you the suspended sentence also had before her report from Dr Carol Cayley. She took that into account when she sentence your 7 April 2011.
On 9 August 2011 you were arrested and charged with possessing to firearms without a licence. One of those offences, which related to a Glock 9 mm semiautomatic handgun, was an aggravated offence, the maximum penalty for which is imprisonment for 10 years or a fine of $50,000. This handgun was loaded.
The other offence was a non-aggravated offence and involved a Vostok Margolin .22 bolt action rifle. The maximum penalty for this offence is imprisonment for four years or a fine of $20,000.
You pleaded guilty to these five offences at an early time. On 16 December 2011 you are committed for sentence in this court for the two counts of possessing firearms. The three summary offences came to this court for the purpose of sentencing. Each of these summary offences carries a maximum penalty of $2500.
The commission by you of these five offences involving firearms breached the two suspended sentence bonds that he signed on 9 March 2011 and 7 April 2011. The Director of Public Prosecutions has applied to enforce those to breached bonds. You have admitted the bonds and their breach.
……
Without thinking you purchase to firearms you told me that you purchase those without intending retribution to the man who shot you, but rather, you purchase them through ‘a paranoid sense of fear’.[17]
You told me that you are ‘now taking positive steps to help (you) overcome (your) issues’. You wrote that you are now looking forward to continuing counselling upon your release from prison. You now have hopes for the future and you feel that, with assistance, you can ‘become a productive and law-abiding member of the community’.
You wrote apologising to the court for your actions, and indicating ‘that you take responsibility for (your) illegal activity’. You wrote that you are ‘willing to accept any punishment the court sees fit to apply to (you)’. You wrote that you are also looking ‘forward to a brighter future’.
You have been in custody since your rest on 9 August 2011. I was informed that you ‘took the initiative to contact an intervention team for assistance with dealing with (a number of) issues’, including your substance use. I was informed that you always engage in and attend sessions on time, and that you have ‘demonstrated a good insight into your drug use’. You have indicated that you need ‘to remove (yourself) from (your) old social scene in order to remain drug free. (Your) mother has offered to help you to move interstate and make a fresh start and (you are) considering this option carefully’.”[18]
[17] This is not the account that the Applicant gave in evidence. He said that these weapons had been received in lieu of cash payment for drugs.
[18] Exhibit 3, G17, Attachment D11, p 112-115.
The Applicant was sentenced to a term of imprisonment of 33 months with a non-parole period of 12 months commencing on 9 August 2011, the day on which the Applicant was first taken into custody.
The Applicant was released from prison on parole on 8 August 2012. He started using again shortly after his release. He resumed association with his old friends in the drug scene.
On 7 May 2013, the Applicant entered into a written “contract” with his mother. The purpose of this was to give him “one last chance to get back on task” and to stop taking drugs. In evidence, the Applicant said that he “couldn’t remember the details…. I wasn’t ready. I didn’t see the issues or the consequences of my actions…”.[19] Ms Rizk was also unable to recall the details but suggested that this was not the only time that she had tried to make a “contract” with her son.
[19] Exhibit 4, p 615.
Correctional Services records for 13 May 2013 include a note in the following terms:
“Paul continues to regularly attend drug counselling with DASSA. He appears not genuinely motivated to address his drug issue… encourage [the Applicant] to attend relapse prevention counselling with DASSA”.[20]
[20] Ibid, p 614.
Correctional Services records dated 26 July 2013 include the following passage:
“Paul’s most recent use of drugs was discussed, he acknowledged that he is not motivated to work on his drug issue. Paul advised that he does not want to be returned to prison but he did not say anything about the things he can do to prevent this from happening. Paul was advised of my phone call with… DASSA earlier today and he stated he did not know when his next appointment is. Paul was advised that’s his responsibility to find out when he is due to see [counsellor]. He was also encouraged to attend his Job-Net service. Paul did not sound motivated at all to speak to the Job-Net service.”[21]
[21] Ibid, p 606.
Correctional Services records for 10 October 2013 report “his parole was recently cancelled due to Paul’s continued drug use and unwillingness to address is drug use”.[22] Further Correctional Services records suggest that he served another term of imprisonment between 3 January 2013 and 19 February 2013.[23] These records also indicate a further period of imprisonment between 2 August 2013 and 4 March 2014.[24]
[22] Ibid, p 601.
[23] Ibid, p 548.
[24] Ibid, p 550.
On 14 October 2013, the Department of Immigration and Border Protection (the “Department”) advised the Applicant that his visa may be subject to cancellation under section 501(2) of the Migration Act 1958 (the “Act”) on character grounds.
By letter dated 22 November 2013, the Applicant was advised that a decision had been made not to cancel his visa on character grounds on that occasion, however, he was issued with a formal warning in the following terms:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[25]
[25] Exhibit 3, G22, Attachment D16, p 133.
On 25 November 2013, the Applicant signed a formal written acknowledgement of his receipt of the warning regarding any future breach of the character test.
The Applicant has chosen to ignore this warning. His explanation is “I did not take this warning as seriously as I should have because of my age and the level of my drug use.”[26] It should be noted that in November 2013, the Applicant was 29 years of age, he was hardly a youth. His only plausible explanation for his behaviour is drug use. This further illustrates the point that, unless the Applicant can abstain from drug use, no warning, whether from a Judge or the Department, is likely to dissuade him from reoffending.
[26] Ibid, G15, Attachment D9, p 103.
The Applicant had counselling in 2014 with the Drug and Alcohol Services South Australia (“DASSA”) and Offenders Aid and Rehabilitation Services of South Australia (“OARS”), but he continued using drugs.
In 2015 the Applicant committed bail offences and driving offences. He continued to use drugs. Contrary to his mother’s clear instructions, he had “druggies” visit the family home.
SA Police reports indicate that the Applicant was involved in a further instance of family violence on 19 December 2015. In this case the violence took place at his mother’s home and the victim was his brother. The report states as follows:
“Victim […] resides with his brother Paul EL KHOUIERY in a house owned by their mother. Peter states he noticed at about 1100 hrs on 19/12/15 that persons were in the shower and realised his brother had friends over. He states one of the house rules is that his brother isnt supposed to have his "druggie" friends over. States he went to the carport where his brother was working on his car & told him to tell his friends to leave […] states Paul ignored him. went back inside & text his mother and his mother text back saying - tell Paul to get his friends out […] went back outside to show Paul the text but he wouldnt look at it or listen.
[…] states he tried to get Paul's attention by kicking his passenger door. Paul was kneeling at the open car door at the time he kicked it. Paul jumped up and was swinging his arms around trying to hit him and the screwdriver he was holding cut him on his left upper forearm […] states Paul continued to try and hit him so he threw a drinking glass at him which missed […] went back inside, called police and 5 mins later went into rear yard where he had a yelling match with his brother from the yard while Paul was still in the carport. States Paul's friend was also yelling egging him to come into the carport to be bashed […] states he went to the carport and Paul and his friend began punching and kicking him. He states Paul got in his car and reversed quickly causing […] to have to get out the way, […] then got behind the car preventing Paul leaving so Police could speak. He states Paul got out the car and they continued to yell at each other till police arrived. […] has a small cut to his left upper forearm, a suspected broken nose, a small bump to back of his head, swollen area or right hand and a few grazes […] stated his other brother was going to take him for medical treatment at FMC.”[27]
[27] Exhibit 4, p 490.
The victim made it clear when police followed up that he did not wish for charges to be laid against the Applicant. According to Ms Rizk it is highly likely that any fight between the Applicant and his brother Peter would have been instigated by Peter who suffers from mental illness.
In about May of 2016, the Applicant’s mother made yet another attempt to help him become drug free. She arranged for him to enter a residential programme in Byron Bay. This went from May to July of 2016. It cost her approximately $30,000 to fund this attempt to help the Applicant.
After completing the programme, the Applicant decided to move to Brisbane to, once again, get a “fresh start”. It is at this point that he says that he remained drug free for about 18 months. South Australia Correctional Services records from 8 March 2017 record an interaction between a Corrections officer and the Applicant’s mother which states:
“Offenders mother confirmed that he was still at the Centre, had completed his initial 6 months (up to Nov) with positive outcomes and had now been placed on a 6 month interim program leading to discharge. This will take the offender approx to the end of his order depending on release date? His mother stated this is the best thing that has happened to him. She visits every few months and is encouraging him to stay in NSW away from negative influences in SA.”[28]
[28] Exhibit 4, p 635.
The Applicant however relapsed. The Applicant said of this period:
“After I lost my job (at James Hardie) I got stressed, had no support. Started associating with people who used drugs and became a heavy user……. I did not intend to use ever again.”
On 8 January 2018, the Applicant signed an incoming passenger card which falsely asserted that he had no criminal convictions.[29] The Applicant’s explanation is that his mother completed the card when he was sleeping. In light of the evidence given by Ms Rizk, it is clear that this account given by the Applicant is not true. She did not accompany the Applicant on this trip to Lebanon and, in fact, made it clear that she would never set foot in the country. She did, however, pay for this trip. It was an opportunity for the Applicant to see his elderly paternal grandmother. It is clear that despite what the Applicant said in his evidence, he both completed and signed this incoming passenger card.
[29] Exhibit 3, G23, Attachment D17, p 138.
In early 2018, the Applicant sold drugs to an undercover police officer in Queensland. By 12 May 2018, police report that he was operating a substantial drug trafficking business for profit.[30]
[30] Exhibit 4, p 237.
On 22 June 2018, the Applicant’s car was searched by police and it was found to contain drugs and other paraphernalia together with 1 kg of silver bullion and two gemstones.[31]
[31] Ibid, p 234.
On 3 July 2018 police searched his home. This was a time during which he was overseas at his brother’s wedding, this time accompanying his mother. Police again found drugs and associated paraphernalia.[32]
[32] Ibid.
On 29 July 2018, he told an associate “I told u i made 120000 in 2 month. im the man up here”.[33]
[33] Ibid, 237.
Police again searched the Applicant’s car on 30 July 2018 and discovered drugs and a loaded handgun stuck to the underside of the Applicant’s driver’s seat.[34]
[34] Ibid, p 235.
When the Applicant was away overseas with his mother in July, his house was burgled. The intruders destroyed a safe and stole the contents which included $87,000 in cash and what the Applicant referred to as “capital” worth $18,000.
The statement of facts tendered in the 2020 Queensland Court proceedings contain the following passage:
“The defendant was conscious of his illegal trade. In mid-July, he conducted Internet searches for ‘drug trafficking cases in Australia’ and ‘charged intent to traffic Australia’. The defendant told associates that he was likely to be arrested at the airport when he arrived home, and that he could be sentenced to five years imprisonment.
Despite this concern, the defendant restocked drugs after he returned to Queensland on 26 July, continued supplying drugs, and was open to expanding his business. On 28 July and associate advertised having 28,000 ‘MDMA strong’ pills. The defendant asked her the price for 1000 pills ($10.50 each) and told her he would call. He purchased these pills; police found them (in crushed form) in his underwear two days later.
……
Following his arrest on 30 July 2018, the defendant was remanded in custody.
……
The defendant successfully applied for bail on 18 December 2018.
……
The defendant breached conditions of his bail multiple times…
……
On 23 January, the defendant was pulled over by police as he was driving at Upper Mount Gravatt. His saliva contained methamphetamine.”[35]
[35] Ibid, p 238-239.
The Applicant was arrested in 2018 for drug offences, but nevertheless continued selling.
He was placed in custody for 5 months but resumed selling drugs upon his release. The Applicant did not tell his mother that he was using again because “he didn’t want to disappoint her”.
On 5 April 2019, the Applicant’s house was searched, and police found drugs and other paraphernalia.
On 7 April 2019, police search the Applicant’s car and found drugs, cash, and other paraphernalia.
On the 6 April 2020, the Applicant came before the Supreme Court of Queensland to be sentenced in relation to drug trafficking offences set out in Annexure B. Her Honour Justice Brown made the following remarks:
“…you are to be sentenced on the following counts… one count of trafficking in dangerous drugs; two counts of possessing a relevant substance; one count of possessing dangerous drugs; one count of possessing category are weapons; two counts of possessing a dangerous drug in excess of 2 g; two counts of possessing a dangerous drug; one count of possessing a category H weapon in a public place… There are two bench charge sheets in relation to summary charges… Three charges of possessing property suspected of having been used in connection with the commission of a drug offence; one charge of unlawful possession of suspected stolen property; two charges of possessing utensils or pipes that had been used; one charge of unlawful possession of restricted drugs; one charge of authority required to possess explosives; one charge of possession of property suspected of being the proceeds of an offence under the drugs misuse act; and one charge of dealing with a prohibited thing.
……
Given the numerous charges with which you have been charged, and the fact that these occurred on several separate occasions dating from May 2018 up until 7 April 2019, statement of facts are extensive, so will not be reiterated all of the facts, which is the agreed basis upon which you are to be sentenced today.
……
The messages and photos on the phone revealed that you had an established trafficking business at a wholesale and street level… You spoke of having earned $120,000 in two months on 29 July 2018. Your house was also said to have been broken into. A safe was stolen which contained $87,000, and you described it as including $18,000 worth of capital. You also had a debt management application on your phone which showed, on the 25th of July, you are owed some $34,885, which is not said to include all of the debts which were owed to you. You pursued debts aggressively, particularly after you were burgled. The range of debts that are revealed by the messages shows debts between $2000 and up to $18,000 in the case of one customer.
The messages demonstrate that you have multiple suppliers, including interstate suppliers. Photos revealed that you have possession of large amounts of cash, because you took photographs of yourself with those large amounts of cash, including one with a shortened rifle. He also took photographs of drugs, an example of which is a bag of white crystal substance placed on digital scales, which one would infer contained methamphetamine, which, according to the digital scales which you took the photo on, contain almost 18 ounces…
In terms of the gun that was found, I note that your instructions are that you had a fascination with guns, but you never intended to use them. While you may have never intended to use it, the gun was loaded, and I at least infer from that, and also from the fact you had a photo taken with a shortened rifle, that you possess that gun for the purposes of protection of your business.
……
The offending with which you are charged is serious. The most serious offence is the trafficking in dangerous drugs, that occurred over a period of two months and 18 days, in three different drugs, namely, methamphetamine, GHB and cannabis. That offence carries a maximum sentence of 25 years. I note the possession of dangerous drugs in excess of two grams, which is the subject of the second indictment, also carries a sentence of 25 years. The principle of totality has to be taken into account in relation to the sentence which I impose, such that the sentence that I impose must not be regarded as one which will be a crushing sentence.
You were 34 to 35 of the time of the offending. There are now 36 years of age. You are a mature offender. You have an unfortunate history. While it is reasonably limited in Queensland, which is in relation to property offences and the bail offences which occurred during this period of offending and is limited in relation to New South Wales, which is dishonesty and driving with drugs, the South Australian criminal history shows 23 pages offending over nine years, which is in relation to drugs, weapons, driving and bail offences.
……
Given the charges for which you are now being sentenced it is hard to see that you have not decided that you want to be a career criminal rather than doing something about your life.
……
Drug addiction is one thing. Taking drugs is one thing in breach of the law, but engaging in the level of trafficking which you have been engaged in, and seeking to make a living by, is an entirely different scale, and the risk to the community by your offending is obvious.
……
The Crown has, in its submissions, noted the aggravating features of your offending, namely: (1) this scale the offending which is particularly indicated by the large amounts of cash which was spoken of, up $120,000; (2) the wholesale amounts of drugs which were involved in offending; (3) the fact that you continued to offend while on bail; and (4) the fact that you were in possession of a weapon which the Crown submits you could infer was to protect your business, and I do draw that inference.”[36]
[36] Exhibit 3, G25, Attachment D19, p 150.
The Applicant stated in evidence that he never intended to use any firearms.
The Applicant’s “individual re-entry plan” prepared for the Queensland community re-entry services team records the Applicant as stating, in about July 2020, that he was “70% confident he will be able to remain abstinent in community”.[37]
[37] Ibid, p 737.
The Applicant advised the Tribunal that if he were returned to the community, he would seek permission from Queensland Corrections to serve the balance of his parole (until November 2023) with his family in Adelaide. If this request were to be granted, appropriate parole supervision may be difficult. His mother said that if he came to Adelaide, he could stay with her “temporarily”. His plans about where to live and what to do post release, seem to be quite vague at present.
The Applicant has made no concrete arrangements regarding post-release treatment or rehabilitation for his addiction, though he says that he is prepared to engage with services. He has completed various relevant courses during his period of incarceration.
On 23 April 2020, the Visa was cancelled under section 501(3A) the Act due to the Applicant having a “substantial criminal record”.
On 4 May 2021[38] and 14 June 2021, the Applicant made written submissions to the Respondent as to why the mandatory cancellation of his Visa should be revoked.[39]
[38] Ibid, G8, Attachment D2, p 50-65.
[39] Ibid, G34, Attachment E, p 185-193.
On 14 July 2021, a delegate of the Respondent refused the Applicant’s application for revocation of the mandatory cancellation pursuant to section 501(1) of the Act on the grounds that he did not satisfy the character test.[40] The Applicant was advised of this decision on 15 July 2021. The Tribunal has jurisdiction to review that decision pursuant to section 500(1)(ba) of the Act.
[40] Ibid, G3, p 13-15.
The Applicant subsequently lodged an application for review in this Tribunal on 21 July 2021.[41]
[41] Ibid, G1, p 1-6.
At the hearing, the Applicant called a Ms Josephine Kinsella to give evidence on his behalf. Ms Kinsella appeared via telephone and provided a statement to the Tribunal.[42] The Applicant only “met” Ms Kinsella on an “online platform” six weeks ago. For the past five weeks they have been “conversing” regularly. Ms Kinsella described herself variously as a “wellness coach” and “mentor”, she does not hold any relevant professional qualifications as a psychologist. In summary, she has been impressed by the Applicant and would like to work further with him to generate “online content”. For his part, the Applicant now says that he has a “purpose and a plan”. He aspires to act as a “mentor”, “to do a psychology course online”, and to become an “inspirational speaker, sharing his experience”. It seems that these plans have all been developed and crystalised in the last few weeks. I note that Ms Kinsella is a resident of New Zealand and has been able to interact with the Applicant by electronic means. There is no pressing requirement for in person interactions. It seems that the Applicant can continue to pursue his career aspirations with Ms Kinsella from anywhere, so long as he has internet access.
[42] Exhibit 5, PEK-7.
The hearing was held on 20 and 22 September 2021. The Applicant was represented by Ms Jennifer Samuta of Samuta McComber Lawyers. Both the Applicant and his representative appeared via Microsoft Teams, the Applicant appearing from Christmas Island Detention Centre and his representative from their offices in Brisbane. The Respondent was represented by Tom Ellison of Australian Government Solicitor and appeared in person at the Tribunal along with the Applicant’s mother, Majeda Rizk, from who the Tribunal heard evidence. The Tribunal also heard evidence from Josephine Kinsella, a mentor of the Applicant, via telephone. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
The Applicant generally presented well. He answered questions directly without obfuscation. He freely admitted his wrongdoing. He stated that he was committed to being drug free. He stated that his period of incarceration had enabled him to be drug free and that he had matured. I note that he has made similar comments about seeing the error of his ways and committing to change his life, at least since 2010. There were, however, discrepancies between his evidence and that of his mother, Ms Rizk. In these instances, I prefer her evidence. The Applicant also gave incorrect evidence about the completion of an incoming passenger card in January 2018.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
There are two issues presently before the Tribunal:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant’s extensive criminal history is set out both at “Annexure B” and above.
The Applicant quite properly concedes that the decision to cancel his visa under section 501 (3A) of the Act was made according to law and that he does not satisfy the character test as prescribed by section 501.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and that he does not pass the character test. The Tribunal must therefore consider whether the discretion in section 501CA(4) of the Act to revoke the cancellation of the Applicant’s visa should be exercised.
Should the Discretion to Revoke the cancellation of Applicant’s Visa be Exercised?
In considering whether to exercise the discretion under s 501CA (4)(b)(ii) of the Act, the Tribunal is bound to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[43]
[43] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[44]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[45]
[44] [2018] FCA 594.
[45] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
There is evidence of family violence against both the Applicant’s former domestic partner and his brother as detailed above.[46] Family violence is very serious. The Direction is not limited to instances of family violence resulting in a conviction.
[46] Refer to paragraphs 23-27 and 41-42.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, 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, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
This consideration is neutral.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been sentenced to two significant terms of imprisonment since 2011. Details of his offending history and sentences are set out in Annexure B. The sentences of imprisonment imposed upon and served by the Applicant reflect the very serious nature of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been offending, on a regular and increasingly serious basis since 2005. The full particulars of the Applicant’s offending have been set out in Annexure B and otherwise in the discussion above.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending, escalating as it has to the level of serious drug trafficking offences and the possession of firearms, is extremely serious.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant made false declarations on two Incoming Passenger Cards. The Applicant’s explanation to the Tribunal for the Card dated 8 January 2018, namely that the Card was completed by his mother, was inaccurate. She was not with him on this occasion when he incorrectly completed the Card. Whether this was a product of confusion with a trip in July 2018 or an attempt by the Applicant to deceive the Tribunal is unclear. It seems that his mother did complete a Card for him in July 2018 when they were returning from Greece together whilst he was asleep. This was Card was also completed incorrectly and was signed by the Applicant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
This consideration weighs particularly heavily against the Applicant. Aside from the formal warning by the Department in 2013, the Applicant has been warned about the consequences of re-offending by judicial officers. He has said that he will change his ways, but he has not. His submissions to Judge Bampton in 2011 regarding his plans to get away from drugs, are much like his current representations to this Tribunal. Similar statements have been repeatedly made to judicial officers and correctional services officers at least since 2010. Up to the present time, the evidence points to these assurances as having been worthless.
I do not consider factor (b) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, particularly (d) and (g), weigh very heavily against revoking the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant has committed multiple offences of escalating seriousness since 2005. He had admitted engaging in family violence. The Applicant has a serious drug addiction problem. He has shown himself to be both willing and able to engage in commercial drug trafficking. He has a fascination with firearms and has been convicted of firearms offences. So far, there is no evidence of him using firearms. It is clear from the findings of Justice Brown in the Supreme Court of Queensland on 6 April 2020, that the Applicant’s “fascination with guns” is more than academic and in fact extends to the use of a firearm to “protect his business”. When it is noted that his first firearms conviction in 2012 involved a handgun, it is perhaps only good fortune that has thus far prevented the Applicant using a firearm in circumstances where a person may have been seriously injured or killed. Any reoffending by the Applicant would be very serious, particularly if weapons were involved.
The Applicant has a history of being found in possession of weapons dating back to 2010:
(a)On 30 October 2010, he was found to be in possession of nunchakus.[47] [48]
(b)On 23 April 2011, he was found to be in possession of a tomahawk.[49]
(c)On 9 August 2011, he was found to be in possession of a Glock 9 mm pistol and a Vostock Margolin rifle.[50]
(d)On 23 December 2015, he was found to be in possession of a baseball bat.[51]
(e)On 30 July 2018, he was found with a loaded handgun stuck to the underside of the driver’s seat in his car.
[47] In evidence, the Applicant stated that these were an antique item for display purposes only.
[48] Exhibit 4, p 306.
[49] Ibid, p 333.
[50] Ibid, p 351.
[51] Ibid, p 415.
The nature of harm that might be done to the community if the Applicant were to reoffend is extremely serious. It may not only include commercial trafficking in drugs, but also possibly the use of firearms or other weapons either for the purposes of “self-protection” or possibly even for the purposes of intimidation of drug debtors.
Likelihood of engaging in further criminal or other serious conduct
The Applicant is on parole until 15 November 2023. This means that if the cancellation of his visa were to be revoked, he would be under the supervision of Queensland Corrections. I sought further submissions from the parties as to the consequences of the Applicant breaching his parole conditions, and whether, or in what circumstances, the Minister’s power to cancel the Applicant’s visa would be enlivened. Having considered these further submissions, I have come to the view that to answer this question would require the Tribunal to engage in uninformed speculation about future events. It would require assumptions to be made about the nature of any future parole breach, and the direct consequences thereof. At this time, the Tribunal can only be satisfied that a parole breach, or reoffending, may enliven the Minister’s power of cancellation. This falls well short of being satisfied that if, for example, the Applicant failed a urine test before 15 November 2023, he would necessarily return to prison, or that his visa would be cancelled. In these circumstances, the weight to be given to the Applicant’s continuing parole as a deterrent to further drug use is minimal.
The Tribunal cannot make a conditional revocation of the visa cancellation, nor can it impose or supervise, parole-like conditional liberty.
The Applicant has been a serial offender, committing offences of greater and greater magnitude since 2005. Despite his attempts to rehabilitate himself since 2005, there is nothing in his history to suggest that he has the determination or the capacity to remain drug free. The only times that he has been drug-free since 2005 have been when he was incarcerated, or for a period of approximately 18 months after his participation in the Byron Bay rehabilitation program. On every occasion, he has returned to drug use and the magnitude of his involvement in drug trafficking has increased. He has engaged in drug trafficking when on bail. As he himself has conceded, drug use and offending go hand in hand in his case. There is nothing in his history to inspire confidence that the Applicant can escape from the drug taking habits of almost his entire adult life. He has no concrete arrangements to be supported in the community if the cancellation of his visa were to be revoked. To believe that he can stay away from the drug scene if released into the community, would be a triumph of hope over experience. In the past, even bail and parole supervision have not deterred him from offending and using drugs.
The Applicant presents a significant risk of returning to substance abuse, and therefore, a significant risk of reoffending.
Conclusion: Primary Consideration 1
This Primary Consideration 1 weighs heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As set out above, the Applicant has no convictions for family violence, though there is certainly evidence of family violence. Although the Applicant’s record of family violence is confined to two relatively minor incidents, both some time ago and neither of which resulted in a conviction, it remains the case that family violence is to always be regarded as a serious matter.
Conclusion: Primary Consideration 2
This Primary Consideration 2 weighs against revocation.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· 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);
· 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;
· 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;
· 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;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Child A is the Applicant’s niece who is currently 12 years of age. Child A lives with her mother. Her father, the Applicant’s brother, has mental health issues and plays no part in her life.
The Applicant had regular fortnightly contact with her when he was not in prison and still living in Adelaide up until 2016, when she was approximately 7 years of age. He has had electronic communication with her since he has been in prison on occasions when he has spoken with Ms Rizk, and Child A was with her. He could continue to maintain contact at this level even if he were not in Australia. That said, there is some benefit to Child A having an ongoing relationship with her uncle. Child A has no real father figure in her life. The Applicant would like to provide this type of support, although it would not be constant and immediate given Child A’s living arrangements. It is also unclear what the Applicant’s living arrangements might be if released into the community. His parole period does not end until November 2023. The Applicant may well be in Queensland at least until then. The extent of any benefit to Child A would be totally dependent on the Applicant’s capacity to abstain from drugs. If he were to return to drug use, his influence would be negative.
Child B, niece, who is currently 2 years of age.
Child B is still very young. The Applicant has never met Child B. If the Applicant were permitted to remain in Australia, he would wish to develop a relationship with Child B as her uncle. Just like Child A, Child B’s contact with the Applicant occurs via electronic communication when Child B is with Ms Rizk. The Applicant and Ms Rizk said that Child B is able to recognise the Applicant, perhaps due, in part, to the similarity of the Applicant’s appearance to that of his brother, Child B’s father. There would be some benefit to Child B in having a relationship with her uncle, again, the extent of this benefit would be dependent on his capacity to abstain from drugs.
Conclusion: Primary Consideration 3
The Applicant is not, and will not, be a primary carer of either Child A or Child B if released. That said, he could play a positive role in the lives of both children. Any possible benefit assumes, in the Applicant’s favour, that he does not return to drug use. Giving the Applicant the benefit of the doubt, this Primary Consideration 3 weighs moderately in favour of revocation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[52]
[52] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant has been involved in multiple offences since 2005 (see Annexure B).
(b)The severity of his offending has escalated. He has twice been sentenced to imprisonment for periods in excess of 12 months because of the seriousness of his offending.[53]
(c)The Applicant has been involved in family violence, though he has no convictions for it. His offending includes commercial trafficking in drugs and firearms offences, both of which must be regarded as extremely serious.
[53] See Annexure B generally.
Conclusion: Primary Consideration 4
This Primary Consideration 4 weighs against revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 37 years of age and apparently in good health.
There is no doubt that if the Applicant were to be returned to live in Lebanon, he would experience significant language and cultural issues. He has not lived in Lebanon since he was a child. The primary language in Lebanon is Arabic, although English is widely spoken. The Applicant claims that his command of Arabic is now quite limited. It is interesting to note that in South Australia Police records up to and including 19 November 2010, the Applicant’s primary language is stated to be “Arabic”. From 17 January 2011 police reports indicate that the Applicant’s primary language is “English”. This would suggest that up until the beginning of 2011, the Applicant considered himself to be primarily a speaker of Arabic. I accept that it would take the Applicant some time to become entirely comfortable in an environment where Arabic was the main spoken language. This difficulty would, however, diminish over time.
Lebanese society is very different from Australian society with many quite different cultural and religious groups within the country. This would no doubt require some adjustment on the Applicant’s part. It is also the case that economic and social conditions in Lebanon are poor, particularly of recent times. The Applicant would find it difficult to get employment or to access health or other services comparable to those available in Australia. According to Ms Rizk, there are few supports to help people with drug problems and drugs are easily obtained in Lebanon.
The Applicant does have relatives in Lebanon including his father, various aunts, uncles and cousins. It is unclear what level of support he could expect to receive from his relatives, and the social, medical, and other economic support available to him there would be less than is available to him in Australia. He would be reliant on financial support from his mother, at least initially. Ms Rizk stated that while she would not want to be put in a position where she has to financially support him, she would no doubt do as it if he was in need.
This Other Consideration (b) weighs in favour of revocation
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has a mother, two brothers and two nieces living in Australia. If the Applicant were to be deported, this would deprive his mother, his brothers (one of whom has mental health issues), and his nieces from the support that his presence in Australia would offer. The Tribunal has heard representations from Ms Rizk who would be very distressed if he were removed to Lebanon. She would not be able to visit him there due to fears she holds regarding her welfare if she were to return. Ms Rizk has a heart condition that may be adversely affected by the stress of the Applicant being removed. She is closest to him out of her three sons. On the other hand, the Applicant has spent considerable time in prison and now in detention. His actual contribution to his family has been minimal for some time now. If removed, he could continue to keep in contact electronically.
The Applicant has resided in Australia since he was 15 years of age and has therefore been here for most of his adult life.
For the first six years of the Applicant’s time in Australia he appears to have been a contributor. From around the year 2005 onwards his behaviour deteriorated and his involvement in the drug subculture became more pronounced. For most of the last decade he has been a great burden on the Australian criminal justice system and an offender against the Australian community.
Given that the Applicant has been here since the age of 15 and that his close relatives (his mother, brothers, and nieces) are all either residents or citizens of Australia, the Applicant has a very significant family and social links to this country.
This Other Consideration (d) paragraph 9.4.1 of the Direction weighs in favour of revocation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
This consideration is neutral.
Overall, this Other Consideration (d) paragraph 9.4.2 of the Direction weighs in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: weighs in favour of revocation;
(c)impact on victims: neutral; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and the impact on Australian business interests: neutral.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
Primary Consideration 1; weighs heavily against revocation.
Primary Consideration 2; weighs against revocation.
Primary Consideration 3; weighs moderately in favour of revocation.
Primary Consideration 4; weighs against revocation.
Having regard to all of the Primary Considerations and the Other Considerations, the application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the visa.
Consequently, I do not exercise the power conferred by section 501CA(4) of the Act to revoke the subject visa cancellation.
DECISION
The decision under review is affirmed.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
.............................[Sgnd].................................
Legal Administrative Assistant
Dated: 6 October 2021
Date of hearing: 20 & 22 September 2021 Solicitor for the Applicant:
Jennifer Samuta
Samuta McComber Lawyers
Solicitor for the Respondent: Tom Ellison
Australian Government Solicitor
Annexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Applicant
Statement of Facts, Issues, and Contentions
2
Respondent
Statement of Facts, Issues, and Contentions
3
Respondent
G-Documents
4
Respondent
Supplementary G-Documents
5
Applicant
Further Evidence Brief
Annexure B – Applicant’s Offending History
Court
Court Date
Offence
Court Result
Cairns Magistrates Court
20/09/2005
Enter premises and commit indictable offence by break
Fined $450
Adelaide Magistrates Court
02/04/2007
Drive with excess blood alcohol
72 hours community service within 6 months
Drivers licence disqualified for 6 months
Narrandera Local Court
09/05/2007
Drive on road etc while licence suspended
Fined $750
Drivers licence disqualified for 12 months
Obtain money etc by deception <= $2000
Fined $500
Holden Hill Magistrates Court
02/11/2007
Fighting
Give false or misleading personal detail to officer
Drive unregistered motor vehicle on a road
Fail to truly answer
Drive uninsured motor vehicle on road
Fined $1500
Drivers licence disqualified for 2 days
Fail to comply with bail agreement
Drive under disqualification or suspension
Imprisonment – 1 month
Suspended sentence – bond $500 (2 years)
Adelaide Magistrates Court
27/10/2008
Breach of bond re 2/11/07
Found proved 1-month imprisonment
Suspended sentence – bond $499 1 year
Due care – basic offence
Unauthorised person drive motor vehicle on road
Drive with excess blood alcohol
Fined $1000
Drivers licence disqualified for 3 years
Pending charge (Victoria)
28/03/2010
Use amphetamine
Possess amphetamine
At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilty against the individual named above [the Applicant].
Pending charge (Victoria)
12/07/2010
Fail to answer bail
At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilty against the individual named above [the Applicant].
District Court of South Australia
09/03/2011
Sell a controlled drug
Cultivate up to prescribed number of cannabis plants
Possess prescribed equipment
Traffic (type unknown) in a controlled drug
Imprisonment – 20 months
Non parole period – 10 months
Suspended sentence – bond $500 (2 years)
Elizabeth Magistrates Court
07/04/2011
Drive under disqualification or suspension
State false personal detail
Imprisonment – 3 months
Suspended sentence – bond $200 (12 months)
Possess or use a prohibited weapon
Fail to comply with bail agreement
Drive unregistered motor vehicle on a road
Contravene defect notice code of practice
Give false or misleading personal detail to officer
Drive uninsured motor vehicle on road
Discharged without penalty
Adelaide Magistrates Court
26/08/2011
Basic offence: dishonestly take property without consent
Fined $50
District Court of South Australia
01/05/2012
Aggravated offence – possess firearm without licence
Imprisonment – 14 months
Non-aggravated offence – possess firearm without licence
Imprisonment – 6 months
Breach of bond re 7/4/11
Suspension revoked – 16 months imprisonment
Breach of bond re 24/9/10
Suspension revoked – 3 months imprisonment
Fail to comply with regulations fail to keep class a or b firearm secured
Fail to comply with regulations fail to keep class c, d or h firearm secured
Fail to stored ammunition separately from firearms
No further penalty
Adelaide Magistrates Court
15/11/2012
Carry offensive weapon
Fined $500
Possess prescribed equipment
Unlawful possession
Imprisonment – 5 months
Suspended sentence – bond $200 (2 years)
Adelaide Magistrates Court
26/02/2013
Breach of community service order
320 hours community service within 12 months
Port Adelaide Magistrates Court
29/08/2013
Drive motor vehicle with meth amphetamine in fluid or blood
Fined $900
Drivers licence disqualified for 3 months
Adelaide Magistrates Court
13/09/2013
Drive under disqualification or suspension
Imprisonment – 2 months
Adelaide Magistrates Court
24/09/2013
Breach of community service order
215 hours community service within 6 months
Adelaide Magistrates Court
07/12/2015
Fail to comply with bail agreement
Imprisonment – 4 days
Adelaide Magistrates Court
09/03/2016
Drive under disqualification or suspension
Imprisonment – 2 months 2 weeks
Section 96(4) bond/obligation 12 months $500
Drive uninsured motor vehicle on road
Drive unregistered motor vehicle on a road
Fined $100
Drive under disqualification or suspension
Imprisonment – 2 months 2 weeks
Section 96(4) bond/obligation 12 months $500
Unlawful possession
Basic offence: dishonestly take property without consent
Carry visible offensive weapon in a school or public place
Imprisonment – 7 days
Section 96(4) bond/obligation 12 months $500
Fail to comply with bail agreement
Imprisonment – 7 days
Section 96(4) bond/obligation 12 months $500
Adelaide Magistrates Court
20/12/2016
Possess controlled drug (not cannabis)
Possess equipment to use with controlled drug (not cannabis)
Fined $280
Fail to comply with bail agreement
Dismissed without penalty
Drive motor vehicle with methamphetamine in fluid of blood
Fined $1100
Drivers licence disqualified for 6 months
Brisbane Magistrates Court
04/02/2019
Breach of bail condition (two charges)
No conviction recorded
Fined $500
Holland Park Magistrates Court
14/02/2019
Breach of bail condition
Fined $500
Brisbane Supreme Court
06/04/2020
Breach of bail condition (six charges)
Imprisonment – 4 months
Possess property suspected or having been used in connection with the commission of a drug offence (three charges)
Possess utensils or pipes etc that had been used (two charges)
Unlawful possession of restricted drugs
Authority required to possess explosives
Possession of property suspected of being the proceeds of an offence under drugs misuse act
Deal with prohibited thing
Possess utensils or pipes etc that had been used (two charges)
Possess tainted property
Possess property suspected of having been used in connection with the commission of a drug offence
On all charges: Conviction recorded – no further punishment
Unlawful possession of suspected stolen property
Imprisonment – 6 months
Possess dangerous drug specified in schedule 1 or 2
Imprisonment – 8 months
Possess dangerous drug specific in schedule 1 or 2
Imprisonment – 12 months
Possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4
Imprisonment – 3 years
Possess dangerous drug specified in schedule 1 or 2 (two charges)
Possessing dangerous drugs schedule 2 drug quantity of or exceeding schedule 3
Possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4
On all charges: Conviction recorded – no further punishment
Possessing relevant substances or things (two charges)
Imprisonment – 6 months
Unlawful possession of weapons category D/H/R weapon
Imprisonment – 8 months
Unlawful possession of weapons category D/H/R weapon – short firearm in public
Possess dangerous drug specified in schedule 1 or 2
Imprisonment – 12 months
Trafficking in dangerous drugs
Imprisonment – 5 years
Brisbane District Court
10/09/2020
Supplying schedule 1 dangerous drugs (two charges)
Imprisonment – 18 months
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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