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

Elkhouli and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 482 (17 March 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0018
Re:Ahmed Abdelmonsef Ahmed ELKHOULI
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:17 March 2022
Place:Sydney

I find that the correct or preferable decision is to set aside the reviewable decision, dated 24 December 2021, and substitute it with a decision that the cancellation of the Applicant’s Partner (Class BS) (Subclass 801) visa is revoked.
..............................[sgd]..........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501(3A) – refusal to revoke cancellation – failure of character test due to substantial criminal record – is there another reason to revoke – protection of the Australian community – risk of reoffending – best interests of minor children – links to the Australian community – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
17 March 2022
BACKGROUND

This is an application for the review of a decision of a delegate of the Respondent, dated 24 December 2021(‘the reviewable decision’), which refused to revoke the mandatory cancellation of the Applicant’s Partner (Class BS) (Subclass 801) visa (‘the original decision’) (‘the visa’) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant’s visa was mandatorily cancelled on 4 November 2019 under s 501(3A) of the Act on the basis that he did not pass the character test in s 501(6)(a) due to a substantial criminal record as defined in s 501(7)(c).
THE APPLICANT’S OFFENDING
On 22 September 2009, the Applicant was convicted or otherwise found guilty of 17 counts of obtain money etc by deception and six counts of unauthorised function w/i serious offence (penalty<=10 y). On that occasion, the Court took into account a further 38 counts of obtain money etc by deception, 16 counts of have false instrument w/i to use, seven counts of unauthorised function w/i serious offence (penalty <=10y) and one count of goods in personal custody suspected being stolen (not m/v) on a Form 1 basis (the 2009 offences). He was sentenced to three months’ imprisonment, which was suspended upon the Applicant entering into a section 12 bond of three months’ duration.
Between 3 October and 2 November 2012, the Applicant engaged in a course of criminal offending that, in 2017, led to his being convicted of a count of dishonestly for gain damage property by fire/explosive-T1 and two counts of do act etc w/i to pervert the course of justice-SI. On 24 August 2017, the Applicant was sentenced to eight years and six months’ imprisonment, with a non-parole period of five years and six months (the 2012 offences). Both the conviction and the sentence were confirmed on appeal.
THE LAW
The relevant legislation and policy outlined below.
Section 501CA(4) of the Act states:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, 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 sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
THE ISSUE
It is agreed by the parties that the Applicant does not pass the ‘character test’ as defined by s 501(6) of the Act. Therefore, the only issue before the Tribunal is whether there is ‘another reason’ why the original decision, being the mandatory cancellation of the Applicant’s visa, should be revoked pursuant to s 501CA(4) of the Act.
THE EVIDENCE
The Applicant
At hearing, the Applicant affirmed his statements dated 31 January 2022 and his statement to the Department dated 31 May 2020. The Applicant had arrived in Australia in 2007 on a student visa. He had worked as a manager at a Minimart owned by his then wife, JA, on a part-time basis. JA had been born in Australia and owned the shop prior to meeting the Applicant.
In September 2009, the Applicant was convicted of a large number of counts of fraud (more than 50) The offences involved stealing other people‘s credit card account details and withdrawing money from ATMs using those accounts. The offences were committed over a period said to be some weeks and the Applicant said that it had been his wife’s idea. The Applicant said that he thought the sum involved was about $15,000 and said that he had paid the money back although there was no direct evidence to support that claim. The Applicant was convicted in September 2009 having entered a guilty plea to the offences. His daughter S was born in June 2010.
The Applicant was convicted of a number of offences in 2017 including arson and also perverting the course of justice by seeking to get his wife and another witness to lie for him. When questioned by Counsel for the Respondent, the Applicant admitted that arson was not a victimless crime as he had previously asserted (i.e., that the only entities affected were insurance companies), but that there was also an effect on those who had had their businesses destroyed as a result of the fire, including those businesses in the immediate vicinity. Furthermore, his business partner who had been part of the arson attempt had suffered third degree burns. There was also significant risk to the lives of others who may have been in the building.
The Applicant denied that he had pressured others to lie to the police or that he had threatened anyone.
The Applicant said that he had discussed the plan to start the fire at the cafe with his business partner and that they went to the cafe at 2am. The intention was to start a small fire and the Applicant said he did not know about the gas being on and that that was the reason for the major explosion and fire. He said that he accepted responsibility for what happened and that the prime motivation was greed.
When questioned as to why he had thought that his sentence was unfair in comparison to other people, the Applicant explained that he had come to this view after hearing of the sentences imposed on other people whilst he was in prison and also the treatment of his co-conspirators in relation to the fire. He now accepted his sentence. He also said that he did not feel that he was unfairly targeted by the police.
The Applicant also accepted that he had lied about his criminal history on a number of occasions including his interview with Dr Ventura in May 2017 and also by answering ‘no’ to the question of whether he had any criminal convictions on his entry cards when returning to Australia after visits to Egypt. The Applicant said that he had misunderstood the questions and thought they related to criminal convictions in Egypt. His visits to Egypt had been to visit family and to attend his sister‘s wedding in 2011. The Applicant also said in response to questioning from his council that his English was not good at the time he filled in the entry cards.
When questioned, the Applicant also accepted that he had committed a number of offences whilst in custody and that he did not in fact have an “excellent” custody record. The Applicant admitted to smoking and being in possession of tobacco, and also to being in possession of some 30 white tablets which he explained were in fact medication he had been prescribed for his mental health, but which he did not take as he thought they were not helping him, and that he had asked the doctor to review it. His medication was subsequently changed. He had also been charged because he had put some hooks on the wall of his prison cell so that he could hang his clothes, but had not sought prior permission to do so.
The Applicant had attempted to attend a number of courses whilst in prison but was not able to do so because he was considered to be at low risk of reoffending. The Applicant agreed that it was essential that he continued to take his medication and to continue to work with appropriate mental health professionals if he is returned to the community.
The Applicant accepted that he had a serious criminal history and expressed serious remorse, saying that he “takes the blame” for what he did. He said that he had spent five and a half years locked away from his family and that he understood the harm caused by his offending. He is in regular contact with his family and speaks to his wife five or six times a day. He sees his family whenever it is possible and is in regular contact via telephone and Zoom with his daughter, S, who is now 11 and his son J, who was born in December 2017. There have been problems in the Applicant being able to have regular contact with his daughter in the past, but the Applicant gave evidence that there were now no problems and he was able to speak to S regularly and that she also had regular contact with his current wife M and with her stepbrother J.
The Applicant gave evidence that he had met M through work and that they had been together since 2015. They were married in February 2017.
The Applicant was suffering from a number of health issues including bipolar disorder, schizophrenia, depression and anxiety. He had been receiving treatment since 2017 and was taking a number of prescription medications. He is currently in recovery and said that he had good insight into his mental issues, although it had taken some time to work out the appropriate medications and dosages. The Applicant intended to continue his mental health treatment if he were returned to the community. He said he wanted to live a normal life in the community, to contribute to the community and to look after his wife and kids. He said he would be “heartbroken” if he had to return to Egypt.
The Applicant’s wife was said to be the one holding the family together and giving the Applicant a great deal of support. If the Applicant had to return to Egypt, he said that his wife would not go as she would not be safe there. He said that his wife feels safe in Australia and that she wants to raise his son in this country. Further, all of her family is in Australia including her brothers & sisters. His wife had suffered very significant trauma as a refugee fleeing from Iraq and Syria prior to coming to Australia.
After his offences in 2012 the Applicant was granted bail in December of that year and lived in the community, under bail conditions, for four and a half years before going to gaol in 2017. Whilst on bail he worked as a chef for almost three years and then as a manager and chef at another restaurant. The Applicant had met his bail conditions while in the community and had not engaged in any further offending. He said he wanted the opportunity to make up for his wrong-doing and that his wife and children would really suffer if he were removed from Australia. His time in prison made him realise what his wife and children meant to him and he really wanted a chance to be part of their lives and to care for them.
Both the Applicant and his wife were hopeful that S may be able to live with them. S had spent a lot of time with the Applicant’s wife whilst he was in prison and that she was very attached to his current wife and son.
The Applicant is eligible for parole in September 2022. He said that he would continue with his mental health treatment if he were released and that the prospects of his reoffending were “remote”.
The Applicant was close to his wife’s family, including his wife’s brother who gave evidence on his behalf. On cross-examination the Applicant accepted that he did not have letters of support from former colleagues nor from his first wife.
The Applicant has family in Egypt. He left the country at the age of 22 and said that he had not worked in Egypt before coming to Australia. He was familiar with the Egyptian language and accepted that the skills he had acquired in the hospitality whilst in Australia would be of use to him if he were returned to Egypt. He said that he had not made any inquiries regarding employment in Egypt.
The Applicant felt that he had good prospects of employment if he were allowed to remain in Australia as a result of his significant experience and the contacts he had made in the hospitality industry.
The Applicant was said to have a hearing scheduled with the Parole Board and had been assessed as being at low risk of reoffending by the parole officer. However, the matter was yet to go before the Parole Board in order to determine a date for his release.
Evidence of the Applicant’s wife (Ms M)
Ms M affirmed her statement of 22 January 2022 and her statement to the Department dated 30 May 2020. Ms M gave evidence that she had met the Applicant in 2015. They had become friends and their relationship had further developed ultimately leading to their marriage in 2017. She states that they are married under Islamic law, but under Australian law they would be considered ‘de facto’. She was aware of the Applicant’s criminal record and said that she “believes in him”.
She visits the Applicant as much as possible and, since May 2017, has been to visit him every week. She said that the Applicant supports her and is very important to her even while he is in gaol. She said that life is very difficult for her trying to work, raise children and pay the bills. She said that she, S and J all live for the day that the Applicant will come back to his family.
Ms M gave evidence as to the very strong relationship between the Applicant and his daughter S and their son J. She said that S was closer to the Applicant then to her biological mother and that she feared S would harm herself if the Applicant were returned to Egypt. Although J is very young he also has a very close relationship with the Applicant. He visits the Applicant regularly and Ms M visited the Applicant all through her pregnancy. All decisions in relation to J are made by both Ms M and the Applicant. They speak to the Applicant via Zoom on Saturday and Sunday. Ms M said there was a very close relationship between S and J and that S visits them most weekends and on school holidays.
The Applicant also has a close relationship with Ms M’s family, all of whom are aware of her criminal record. Ms M has two brothers two sisters and her mother in Australia. They came to Australia as refugees. The family is very supportive of her, particularly her brother A whom she relies on a lot for support, and who also appeared to give oral evidence in support of the Applicant at the hearing.
Ms M gave evidence as to the hardships she had suffered prior to coming to Australia and said that if the Applicant was deported to Egypt, she would not leave Australia. She could not go back to the Middle East because of the trauma that she had suffered there. She has been in Australia since 2012, loves Australia and sees herself as Australian, and wants to raise her son here. She would be forced to divorce the Applicant if he were deported.
The Applicant’s brother-in-law, A
A affirmed his statement of 30 January 2022. He has a Bachelors of Arts degree and is currently studying for a Master of Arts and wishes to become a secondary school teacher.
He said he had met the Applicant whilst working part time at a restaurant. He said he formed a friendship with the Applicant whom he found to be very family oriented, particularly in relation to his daughter, very hard-working and ethical.
He gave evidence of the Applicant’s very strong relationship with all of his family. He said that J was very close to his father and that the Applicant was involved in all aspects of his life. He said that J was asking more and more about his father including why his father does not come to the house or take him to the park. In his view, J is very attached to his father who is involved in all aspects of his life.

A stated that it was emotionally draining for him to try and support his sister as well as also supporting his mother who has a range of significant health issues.
He said that his sister would not return to the Middle East because of the trauma she had suffered and that he did not want his nephew to go there, but rather to remain in Australia where he was safe and would be able to achieve his potential. If the Applicant were returned to Egypt it would “break the family apart.”
In A’s opinion the Applicant was very remorseful, he had been very upfront about his offending and had apologised to his wife and her family. He had been remorseful while on bail and continued to show very strong remorse whilst in jail.
DISCUSSION
In coming to a conclusion in this matter, the Tribunal is required to have regard to the provisions of Direction 90, which sets out a number of primary and other considerations.
PRIMARY CONSIDERATIONS
Primary Consideration 1 - Protection of the Australian Community
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
Nature and seriousness of conduct
In considering this matter, the Tribunal must take into account that the Applicant’s offending started shortly after his arrival in Australia. In 2009, he was found guilty of a large number of fraud offences and sentenced to three months’ imprisonment, which was suspended.
At the hearing before the Tribunal, the Applicant said that the victims were people who had been customers of the Minimart owned by his wife and where he worked on a part-time basis. He said that the fraudulent behaviour had been at the suggestion of his then-wife. The Applicant also said that he had paid back all of the money (about $15,000) which had been stolen, although there was no direct evidence to support this claim. He also accepted responsibility for his actions and under cross-examination, admitted that his conduct was motivated by greed.
On 24 August 2017, the Applicant was sentenced in respect to a number of offences in 2012 which arose from the deliberately setting a restaurant operated by the Applicant on fire. The Applicant said that his intention had been to start a small fire and that he was unaware that there was a gas leak or that the gas may have been turned on in the restaurant which resulted in a major explosion which destroyed the building. The Applicant’s business partner, who was also party to the offence, suffered third degree burns. A number of businesses in the building or adjacent to the building were also badly affected.
Under cross examination, the Applicant accepted that this was not a victimless crime, having previously said that the only victims were insurance companies. He accepted that his business partner had been injured, that other business owners in the vicinity had been adversely affected, and that much more serious damage to other people could have been caused. Once again, the Applicant’s motivation was greed as he wished to claim the insurance monies from a policy that had been previously taken in relation to the business and to use that money to expand the restaurant.
The Applicant’s conduct in setting the fire was deliberate and pre-planned, including the Applicant discussing with his previous wife how a gas stove could be left on and ignited and indicating to her in 2012 that he was contemplating committing the offence. There was clearly a reckless disregard for public safety.
In my view, the Applicant’s behaviour in attempting to pervert the course of justice was even more serious. The Applicant at the hearing admitted to instructing two female witnesses to lie to the police which they did.
This shows a very concerning lack of respect for the justice system and a willingness to implicate or cajole others in criminal behaviour.
The seriousness of the 2012 offences is reflected in the sentence imposed on the Applicant, namely a term of imprisonment of eight years and six months. The imposition of such a long sentence is clearly a reflection of the seriousness of the Applicant’s offending and the danger posed to the community by the Applicant’s conduct both in causing the fire and subsequent explosion which destroyed a building complex and injured his partner, together with an attempt to pervert the course of justice and cover up the crime, making a serious effort to hinder police in their investigation, and cover up the Applicant’s involvement in the crime.
The Applicant’s second offences are much more serious than the first. There was again attempted fraud, together with a reckless disregard for public safety and an attempt to interfere with witnesses in a manner that undermines the proper functioning of the Australian justice system.
At the hearing there was considerable discussion as to whether the Applicant still considered his sentence to be unfair. He had appealed his original sentence which was affirmed by the appeal court. The Applicant said that he had come to regard his sentence to be unfair because of what he had come to find out about other sentences while he was in gaol, and the sentences of his co-conspirators. However, he said he had now accepted for responsibility for the crimes he had committed and sentence imposed by the court.
The Applicant was also questioned about providing false information to the Commonwealth by failing to declare his previous criminal history on incoming passenger cards dated 22 January 2011 and 11 October 2011 when he had returned to Australia from visits to Egypt. The Applicant said that at the time these offences occurred, his English was not as good as it is now and that he had understood the questions to relate to criminal convictions in Egypt. Whilst I accept that the Applicant’s English may have been poor at the time, I note that it was his responsibility to answer the questions on the form correctly.
Overall, the Applicant’s criminal offending must be considered as very serious.
Risk to the Australian community
Clearly, the Australian community would be seriously adversely affected if the Applicant were to further engage in fraudulent behaviour either by deception as in 2009 or arson as in 2012. It would be also be extremely serious if the Applicant were to engage in any further conduct to hinder the police in the execution of the duties or to interfere with potential witnesses in a criminal matter.
Whilst the Applicant’s crimes did not directly involve violence towards others, his actions in 2012 clearly risked serious harm to other members of the Australian community.
When questioned about his risk of reoffending, the Applicant said he was a changed person. He said that separation from his wife a family had caused him to think about the importance of his family and the need for him to be able to work and support them and to be part of a normal family group. He also drew attention to a number of mental health conditions which he said contributed to 2012 offences including bipolar disorder, schizophrenia, depression and anxiety, which he said were now being properly treated. He was seeing a psychiatrist regularly in prison and intended to continue with his mental health treatment were he to be released into the community.
Whilst I accept that the Applicant’s perspective may have changed during his long period of imprisonment, I give weight to Judge Jeffries, the sentencing judge in 2017, who found that he was not satisfied that the Applicant’s mental health had contributed in any material way to his committing the offences in question. I do accept however that the Applicant’s strong family relationships which his children and with his second wife and her family will be a protective factor against the Applicant reoffending. Although the Applicant had one child from his first wife and had another partner at the time of the offence, it would not appear from the evidence that the Applicant’s first wife had anything other than a detrimental effect on his conduct, and his partner at the time of 2012 offences also does not appear to have had a particularly strong moral compass.
Unusually in cases of this kind, there was no direct evidence from a current treating psychiatrist as to the Applicant’s mental health or his prospects of reoffending. There were a number of reports which were before the Tribunal but none of them directly addressed the issue of recidivism. Rather, the report of Mr. de Robillard relates the Applicant’s relationship to his daughter, S, and the effect his imprisonment would have on her mental health whilst the report of Dr. Ventura focuses on primarily on how a custodial sentence would affect the Applicant’s mental health. Mr Sam van Muers’ report focuses on S, and the effect on her of being separated from the Applicant. I do however give weight to the evidence that the Applicant has been assessed of being low risk for the purposes of him being granted parole, although he is yet to have a hearing before the parole board.
I take into account the fact that the Applicant was on bail for approximately four and a half years after the offences in 2012 before he went to jail in 2017. During this period, he worked as a chef and does appear to have engaged in any offending behaviour.
Although it was brought to the Tribunal’s attention that the Applicant has been guilty of several offences while in the prison system, including possessing tobacco and being in possession of several pills that I accept were prescription drugs that the Applicant was refusing to take as he did not believe they were helping, none of these infringements are serious. I accept the Applicant’s explanation and I give them little weight.
Based on the evidence, I find that the Applicant is at low to medium risk of reoffending.
Considered overall, I give Primary Consideration 1 very heavy weight in favour of non-revocation.
Primary Consideration 2 – Family Violence
Although the Applicant was charged with breaching an Apprehended Violence Order (AVO) in 2018, the charge was subsequently dismissed. There was no further evidence before the Tribunal that the Applicant was guilty of any family violence.
This consideration has neutral weight.
Primary Consideration 3 – Best Interests of Minor Children
The Applicant has two minor children – namely, his daughter S, born in June 2010 to his first wife, and his son J, born in December 2017, to his current wife.
I accept the evidence that despite his imprisonment, the Applicant has a very strong relationship with both S and J. The Applicant gave evidence to the Tribunal that he is in very regular contact with both children, and both his wife and his brother-in-law gave evidence regarding the important role the Applicant plays in J’s life, including evidence that J was asking why his father was not home, and why he did not take him to the park. I accept the evidence of the Applicant’s wife that she has done everything she can to ensure a very strong relationship between J and his father.
Although the Applicant clearly had a very difficult relationship with his first wife after their separation, and this impacted on his relationship with S, it is to his credit that he made every effort to ensure the relationship continue.
The fact that he may have had to pay his ex-wife to see S does not in any way reflect adversely on the Applicant. In any event, the evidence demonstrates clearly that S now spends significant time with the Applicant’s current wife and has a strong relationship with her and with the Applicant’s son, J. The Applicant’s wife referred to the possibility of S harming herself if the Applicant were to be removed from Australia, and her concerns are supported to some extent by the reports of Mr. de Robillard and Mr. van Muers.
Although I accept the Respondent’s contention that the Applicant’s relationship with his children, particularly J, must be affected by his being in prison, including the fact that he has some further time to serve before being eligible for parole, I find that the Applicant has made very significant efforts to build and maintain a relationship with his children, and that he has been ably supported in doing so by his current wife, who gave evidence that even during her pregnancy she made regular visits so that there was contact between the Applicant and the unborn child. She has been totally committed to fostering and building the relationship between J and the Applicant, and to including S as part of the family. I also accept her evidence, which was corroborated by her brother, as to the struggle she is facing physically, emotionally and financially in trying to support and raise the family whilst the Applicant is in the prison.
The Applicant clearly has a very strong relationship with his children, and is very important to their wellbeing. It is clear that it is in their best interests for the Applicant to provide strong parental influence and guidance in their lives, on a day to day basis.
Overall, I am of the view that this primary consideration weighs very heavily in favour of revocation.
Primary Consideration 4 – Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian Community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In assessing the weight that is to be given to this consideration, I take into account the very serious nature of the Applicant’s offences, the fact that his criminal conduct occurred shortly after arriving in Australia, and the Applicant’s risk of reoffending. I also note that the Applicant was an adult at the time when he first came to Australia. The evidence also showed that the Applicant suffered from serious mental health issues for which he is now being receiving appropriate treatment, and that he intends to continue his treatment if released into the community.
Overall, I give this consideration moderate to heavy weight in favour of non-revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
There is no evidence before the Tribunal that this is a relevant consideration to this matter. I find that it has neutral weight.
Impediments to removal
The Applicant was educated and raised in Egypt before coming to Australia at about 22 years of age. There was no evidence of any cultural or language barriers in relation to his returning to Egypt. He also accepted that the skills he had acquired in the hospitality industry in Australia would be transferable to Egypt. There was also evidence that the Applicant has family in Egypt.
There was no evidence before the Tribunal as to the standard of healthcare that the Applicant would receive in Egypt, however, it is reasonable to assume that the mental health care he receives and is likely to continue to receive in Australia is superior to that available to the Applicant in Egypt. He would be also adversely affected by the loss of family in Australia. In particular, the prospect of being divorced from his wife, with whom he obviously has a very close relationship, and the support she and members of her family provide. His wife and family would be significantly adversely affected if the Applicant were to be removed from Australia.
Overall, I find this consideration weighs moderately in favour of revocation.
Impact on victims
There is no evidence before the Tribunal relating to this consideration.
I find it has neutral weight.
Links to the Australian community
This consideration requires the Tribunal to consider the strength, nature and duration of the non-citizen’s ties to Australia, and the impact on Australian business interests should the non-citizen be removed.
Strength, nature and duration of ties
The Applicant has strong links to Australia, particularly through his wife, his brother-in-law, and the other members of his wife’s family. He also has a brother in Australia.
The evidence of the Applicant’s wife is particularly important in considering the Applicant’s ties to Australia. The evidence before the Tribunal was that their relationship is a very strong one, and that the Applicant’s wife has devoted very considerable time and energy into maintaining her relationship with the Applicant and developing a strong relationship between the Applicant and his son, J. She has also worked hard to make the Applicant’s daughter S part of the family.
I accept he Applicant’s wife’s evidence that because of the trauma she suffered as a refugee, particularly in Iraq and Syria, that she would definitely not return to the Middle East because she would not feel safe there. All of her family are in Australia. I accept her evidence that she would divorce the Applicant if he were removed to Egypt. I also accept her evidence, and that of her brother-in-law, that it would be absolutely devastating for the family if the Applicant were removed. I also accept the evidence that the removal of the Applicant would have a very significant effect on S’s mental health and well-being.
As pointed out by the Respondent, there was no evidence before the Tribunal that the Applicant had any network of friends or community networks such as sporting or recreational activities, or membership of community organisations or church groups. There were no letters of support from people outside of his or his wife’s family. The Applicant did however say that if he were released from detention he would easily be able to find work with acquaintances with whom he had previously worked in the hospitality industry. There was no evidence before the Tribunal as to how his brother would be affected if the Applicant were to be removed from Australia. I also note that the Applicant’s offending began a short time after his arrival in Australia, and that his first wife did not provide any statement in support of the Applicant.
I give very significant weight to the evidence of the Applicant’s wife, who I found to be a highly credible witness.
Impact on business interests
There is no evidence that the removal of the Applicant would have any major impact of any Australian businesses.
Overall, I am of the view that this consideration weighs heavily in favour of revocation.
DECISION
The task of the Tribunal is to weigh up all of the considerations in coming to a conclusion. It is well-established that the primary considerations do not necessarily outweigh the other considerations. It is up to the Tribunal to inform itself of the weight to be given to the various considerations.
In this case, the Applicant has been found guilty of very serious offences. However, his risk of recidivism is low to moderate, he has significant ties to Australia, and the best interests of his children weigh heavily in favour of revocation.
Overall, having considered all of the evidence before the Tribunal, I find that the balance weighs in favour of revocation.
I find that the correct or preferable decision is to set aside the reviewable decision, dated 24 December 2021, and substitute it with a decision that the cancellation of the Applicant’s Partner (Class BS) (Subclass 801) visa is revoked.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..............................[sgd]..........................................
Associate
Dated: 17 March 2022

Date(s) of hearing: 2 & 3 March 2022

Counsel for the Applicant: Dr. J Donnelly

Counsel for the Respondent: Mr. M Cleary

Solicitors for the Respondent: Sparke Helmore

[2022] AATA 482

17 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	2 & 3 March 2022
Counsel for the Applicant:	Dr. J Donnelly
Counsel for the Respondent:	Mr. M Cleary
Solicitors for the Respondent:	Sparke Helmore