Erradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 703

Erradi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 703 (3 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0227
Re:Abdelouahed Erradi
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member C.J. Furnell
Date:3 April 2020
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]............ ............................................................
Senior Member C.J. Furnell
Catchwords
MIGRATION – Partner Class BS Subclass 801 (Permanent visa) – mandatory cancellation of visa – Morocco – stalking - using a carriage service to menace, harass or cause offence - using a carriage service to threaten serious harm - using a carriage service to threaten to kill – not satisfied passed character test – not satisfied any other reason mandatory cancellation should be revoked – decision affirmed
Legislation
Freedom of Information Act 1982
Migration Act 1958
Cases
Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305
Bartlett and Minister for Immigration & Border Protection [2017] AATA 1561
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588
Director of Public Prosecutions (Vic) v Perry [2016] VSCA 152
DPP v Erradi [2015] VCC 1672
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Mcintyre v The Queen [2009] NSWCCA 305
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
R v Breeze [1999] QCA 303
R v Butcher [1986] VR 43
R v Galas [2007] VSCA 304
Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
Secondary Materials
Convention relating to the Status of Refugees
Convention Against Torture
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Halsbury’s Laws of Australia
International Covenant on Civil and Political Rights
Oxford Reference – definition of the word perseveration
REASONS FOR DECISION
Senior Member C.J. Furnell
3 April 2020

The issue before the Tribunal is whether a power conferred by the Migration Act 1958 (the Act) to revoke a decision to cancel Mr Erradi’s visa ought be exercised.
On 18 September 2017 Mr Erradi’s Class BS, Subclass 801 Partner (Permanent) visa was subject to mandatory cancellation under s501(3A) of the Act.
The cancellation was mandatory because a delegate of the Minister was satisfied that Mr Erradi did not pass the character test set out in s501 of the Act and Mr Erradi was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
Mr Erradi made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.
As a result, the Respondent could have revoked the decision to cancel Mr Erradi’s visa if satisfied that Mr Erradi passed the character test (as defined by s501 of the Act) or that there was another reason why the visa cancellation decision should be revoked.
On 13 December 2019, however, a delegate of the Respondent decided not to do so.
Mr Erradi has applied to the Tribunal for review of that decision.
In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[1]
[1] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14][15][51]
As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that Mr Erradi passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[2]
[2] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation- Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]; MHA v Buadromo [2018] FCAFC 151 at [21]
For the reasons which follow, I am not satisfied about either of those things.
DOES THE APPLICANT PASS THE CHARACTER TEST?
I am not satisfied that Mr Erradi passes the s501 character test and Mr Erradi accepts that he does not pass that test.[3]
[3] Applicant’s statement of facts, issues and contentions of 26 February 2020 (Applicant’s SFIC) [4]
Under s501 a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[4] Mr Erradi has such a record. He has been sentenced to a term of imprisonment of 12 months or more.[5] In particular, with respect to charges of stalking, using a carriage service to menace, harass or cause offence, using a carriage service to threaten serious harm and using a carriage service to threaten to kill, he was sentenced on 25 November 2016 to an aggregate term of imprisonment of three years.[6]
[4] S501(6)(a) Act
[5] S501(7)(c) Act
[6] G3, 32; G4- references to “G” in the footnotes are references to documents provided by the Respondent under s501G of the Act
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
I am not satisfied that there is another reason why the decision to cancel Mr Erradi’s visa should be revoked.
In arriving at that state of non-satisfaction I have sought to (as I am required by s499 of the Act to) comply with a written direction of the Respondent found in a document entitled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Compliance with Direction 79 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case.”[7]
[7] Direction 79,cl6.1(3) and 13(1)
It also requires that I take into account certain considerations (where relevant)[8], informed by certain principles.[9]
[8] Direction 79,cl8(1)
[9] Direction 79, cl7(1)
The relevant principles not only inform the process by which I take into account certain considerations, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[10]
[10] Direction 79, cl6.2(3)
Those principles are[11]:
1Australia 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.
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[11] Direction 79, cl6.3
I turn now to outline some facts of relevance to the application of these principles to Mr Erradi’s case and the material before me from which (in addition to the evidence adduced at the hearing of this proceeding) those facts are derived.
MATERIAL CONSIDERED AND FACTUAL CONTEXT
In addition to the submissions made and evidence adduced at the hearing of this proceeding, the material before me included a binder of documents (and a binder of supplementary documents) provided by the Respondent under s501G of the Act (which I refer to as the “G” and “SG” documents, respectively), a letter of Mr Richard Taylor, clinical psychologist, of 21 February 2020 (the psychologist’s report), a petition of members of the Victorian Moroccan community dated 16 February 2020, a letter of 21 February 2020 from the director of the Sydney Moroccan Association, a letter of 20 February 2020 from Mr Erradi’s sister-in-law, a letter of 22 February 2020 from Ms J, Mr Erradi’s former spouse, various certificates of participation for “life skills” and other courses conducted principally in the period October 2019 to January 2020, 144 pages of medical health records released under the Freedom of Information Act 1982 (FOI Act) from the time Mr Erradi spent in a Victorian prison[12], a letter of support from Mr L of 23 February 2020, a letter of support from Mr R of 23 February 2020, a letter of support from Mr B of 23 February 2020, a statement of Mr Erradi’s brother 23 February 2020 and a statement of Mr Erradi of 24 February 2020. (As is clear, pseudonyms have been used in relation to several of the person providing material in support of Mr Erradi’s case.)
[12] 93 of the 144 pages released were released under the FOI Act in part.
The following matters of fact are derived from that material.
(a)Mr Erradi was born on 27 September 1979;
(b)He is a citizen of Morocco;
(c)He first arrived in Australia on 7 December 2006 when he was 27 years old;
(d)His brother is an Australian citizen who resides in Australia;
(e)His sister resides in Dubai;
(f)His father resides in Morocco;
(g)In early 2007 he applied for a protection visa on the basis that, if he returned to Morocco, he was at risk from a gang that dealt in drugs. His application was, however, refused;
(h)In 2007 he began a relationship with Ms J and married her on 29 September 2007;
(i)On 27 September 2009 his daughter was born;
(j)In March 2011 he separated from Ms J who, with his daughter, began to reside with her mother in NSW;[13][14]
(k)On 28 August 2011 Mr Erradi was granted a Class BS Subclass 801 Partner (Residence) visa; and
(l)Mr Erradi was separated from Ms J but it remains unclear whether they formally divorced.[15]
[13] G6,53
[15] G8,66
I turn now to Mr Erradi’s history of offending.
As I stated earlier, on 25 November 2016, Mr Erradi was convicted of a variety of charges relating to stalking and the use of a carriage service, charges to which Mr Erradi pleaded guilty and for which he was sentenced to a term of imprisonment of three years.[16]
[16] G4,45; G45 179
As for the use of a carriage service charges, in the period 20 February 2016 to 9 June 2016 Mr Erradi made 875 calls to the Bankstown police station (422 of which were made within the space of 15 hours), 825 calls to the Bunbury police station (609 of which were made in the space of 18 hours), 68 calls to a Perth communications centre and 42 calls to the Bunbury Magistrates’ Court. This represented 40 hours of calls, 39 of which were made to the police.
In nature, these calls were “aggressive, abusive and vulgar”.[17]
[17] G4,35
On 20 January 2016 Mr Erradi rang the person with whom he was involved in a motor vehicle collision on 14 January 2016 who he threatened to stab unless the person fixed Mr Erradi’s car. This conduct resulted in a charge of using a carriage service to threaten serious harm.[18]
[18] G4, 36
On 7 June 2016 Mr Erradi made nine phone calls to the office of that person, being the conduct, which gave rise to the stalking charge. During these latter calls Mr Erradi abused the staff member to whom he spoke and threatened to stab and shoot the gentleman involved in the collision.
Also, on 7 June 2016 Mr Erradi also rang the Bendigo police and asked that the constable to whom he was speaking prepare a police report in relation to the collision. Mr Erradi’s response to the refusal of that request included stating that he intended to stab and kill the gentleman concerned.
Mr Erradi’s misuse of a carriage service in 2016 appears to form part of a pattern of offending that has occurred over several years.
In this regard:
·on 20 November 2015 Mr Erradi was convicted of using a carriage service to menace harass and offend, as well as stalking. Between 1 February 2015 and 28 March 2015 Mr Erradi made 7193 calls to police stations in two States. “The content of the calls was vulgar, threatening, and menacing in nature.”[19] This offending was said to be almost identical to that for which Mr Erradi was convicted in November 2016.[20] He appeared before the same Judge before whom he appeared in November 2016 and was sentenced to seven months imprisonment. Given time already served, he was released on entering a recognisance to be of good behaviour for two years, a condition with which he clearly failed to comply.
·In respect of conduct that apparently occurred in 2014,[21] on 14 January 2019 Mr Erradi was convicted and fined with respect to two charges of using a carriage service to menace, harass or cause offence and two charges of improper use of an emergency call service.[22]
·On 17 July 2013 Mr Erradi was convicted with respect to a charge of using a carriage service to menace, harass and offend and released on his own recognizance to be of good behaviour for 12 months. (It seems likely that this conduct was directed at a friend of Ms J who Mr Erradi contends was trying to interfere in his relationship.[23])
[19] See DPP v Erradi [2015] VCC 1672 at [3]
[20] G4, 38
[21] G9,80
[22] G3,31,32
[23] See Mr Erradi’s statement of 24 February 2020
Mr Erradi has also been convicted of a string of charges which would appear to show a lack of respect for Australia’s law enforcement framework and a disregard of commitments imposed in the context of that framework. In particular:
·Much of the harassment and abuse in which Mr Erradi indulged through his misuse of carriage services has been directed at police and emergency service personnel.
·When arrested on 12 June 2016, Mr Erradi spat at a police officer.
·On 14 January 2019 (again, said by Mr Erradi to be in respect of events that occurred in 2014) Mr Erradi was convicted and fined with respect to two charges of breaching protective bail conditions, breach of bail, disorderly behaviour in a police station or lockup, failure to obey an order given by an officer and assaulting a public officer.
·On 12 September 2014, Mr Erradi was convicted and fined with respect to charges of breach of bail, breach of protective bail conditions, failure to comply with a request to give police personal details, and obstructing police officers.
·On 6 August 2013 Mr Erradi was convicted and fined with respect to a charge of resisting an officer in the execution of duty.
·On 6 September 2011 Mr Erradi was convicted and fined with respect to a charge of contravening a prohibition or restriction in a domestic violence order.
In addition, Mr Erradi has been convicted and fined:
·On 12 September 2014, with respect to charges of criminal damage to or destruction of property (2 charges) and disorderly behaviour in public.
·On 16 September 2013, with respect to a charge of driving a motor vehicle during disqualification period.
·On 5 February 2013, with respect to a charge of driving with a middle range prescribed content of alcohol.
·On 8 June 2011, with respect to a charge of common assault (which attracted a bond, rather than fine).
I turn now to the considerations which I am required by Direction 79 to take into account.
PART C CONSIDERATIONS - OVERVIEW
The relevant considerations are those set out in Part C of Direction 79.
Part C is divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia, and expectations of the Australian community.[24]
[24] Direction 79, cl13(2)
The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and extent of impediments if removed.[25]
[25] Direction 79, cl14(1)
The primary considerations are generally to be given more weight than the other considerations[26] and one or more primary considerations may outweigh other primary considerations.[27]
[26] Direction 79, cl8(4)
[27] Direction 79, cl8(5)
Protection of the Australian community
The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[28]
[28] Direction 79, cl13.1(1)
Taking this primary consideration into account requires that regard be also had to two subsidiary considerations being, in the circumstances, the nature and seriousness of Mr Erradi’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[29]
[29] Direction 79, cl13.1(2)
Nature and seriousness of conduct
As for the nature and seriousness of Mr Erradi’s conduct to date, Direction 79 requires that several principles or factors be taken into account. I will deal with each of these in turn.
The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
This principle aligns with the second and third general principles that form part of the framework within which I should, under Direction 79, approach my task.
These general principles identify two expectations. The first is of the Australian community and it is that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes. The second is of non-citizens. It is that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature.
The Respondent contends that the carriage service offences of which Mr Erradi has been convicted (involving the use of a carriage service to menace, harass or cause offence, to threaten serious harm and to threaten to kill) are crimes of violence and that, as such, ought be viewed as very serious. On the other hand, it is contended on behalf of Mr Erradi that these offences did not involve actual violence.[30]
[30] Applicant’s SFIC [36]

I accept the Respondent’s contention and reject that made on behalf of Mr Erradi.
The concept of “violence” is not one that appears to have been the subject of exhaustive definition.[31] Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.”[32] Hence, an act of violence includes “…acts of intimidation and menaces as well as physical force.”[33]
[31] R v Butcher [1986] VR 43 at 48
[32] IBID at 52; see also Breeze v R [1999] QCA 303 at [19] and R v Galas [2007] VSCA 304 at [31]-[32]. In Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305 at [38] it was suggested that violence, in a particular context, required force significantly greater than mere physical contact but this suggestion was couched so a s to exclude “for present purposes threats and intimidation”.
[33] Director of Public Prosecutions v Perry [2016] VSCA 152 at [40]
Mr Erradi did not dispute this interpretation of the word “violence” at common law but did contend that, in the context of Direction 79, the word only encompassed physical violence. No basis for this approach to the construction of Direction 79 was, however, identified and I reject it.
Mr Erradi’s carriage service offences involved or, at least included, acts of intimidation and menace. As a result of Mr Erradi’s conduct in early 2015 police officers “reported feeling threatened, harassed and intimidated” while one particular officer “felt apprehension and fear for her safety.”[34] The same may be said of the stalking offence in respect of which Mr Erradi was convicted in June 2016. A consequence of it was that a member of the public felt very vulnerable and feared for his family and staff.[35]
[34] DPP v Erradi [2015] VCC 1672 at [5]
[35] G4,37
As such, those offences involved (or at least included) crimes of violence and, hence, are required by Direction 79 to be, and are, viewed very seriously.
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
This principle aligns with an aspect of the third general principle that forms part of the framework within which I should, under Direction 79, approach my task. being the aspect that has forfeiture of the privilege of staying in Australia being the general expectation of non-citizens who commit serious crimes of a violent nature against women or children.
The Respondent contends that Mr Erradi has been convicted of domestic violence offences. On 8 June 2011 Mr Erradi pleaded guilty to, and was convicted of, common assault in relation to his then wife, Ms J. As set out in the relevant Magistrate’s sentencing remarks,[36] Mr Erradi was said to have been imploring her to rethink what was then their three-month separation. In an unwelcome advance, he took hold of Ms J’s hand and kissed her, both on the hand and the forehead. While the Magistrate found the offence to have been proved, Mr Erradi was discharged on condition that he enter into a 12-month good behaviour bond. The magistrate deemed it “inexpedient to inflict any punishment”.
[36] G6 sets out the decision of a magistrate on 8 June 2011
Given these circumstances, it was contended on behalf of Mr Erradi that the crime of which he was so convicted was not of a violent nature. I disagree. In terms of degrees of violence, while Mr Erradi’s offending was at the low end of the spectrum, it nevertheless involved violence. Common assault is inherently violent. It entails intentional or reckless application of force to be applied to the body of another, without lawful excuse or justification and without consent.[37] As “the law cannot draw the line between different degrees of violence…[it] totally prohibits the first and lowest stages of it.”[38]
[37] See “Halsbury’s Laws of Australia”, para 130-1020, online publication as at 16 March 2020
[38] Mcintyre v R [2009] NSWCCA 305 at [42]
Even if violence were not inherent in the concept of an assault, however, violence was inherent in the circumstances in which the assault here under consideration occurred. They entailed Mr Erradi physically taking hold of his former wife in circumstances where doing so was unwelcome.
Given my characterisation of the assault on Ms J as a crime of a violent nature I am required by Direction 79 to view it very seriously, and I do so. Moreover, the fact that the sentencing Magistrate saw fit not to “inflict any punishment” is irrelevant. As the Respondent correctly noted, Direction 79 requires that crimes of a violent nature against women be viewed very seriously regardless of the sentence imposed.
The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.
This principle aligns, in part, with the first and third general principles that form part of the framework within which I should, under Direction 79, approach my task. Amongst other things, those principles identify an expectation that non-citizens will respect Australia’s law enforcement framework and will not threaten harm to individuals, and an expectation of non-citizens to the effect that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature against vulnerable members of the community.
The Respondent contends that Mr Erradi’s offending involved a crime against a child, constituted by his conviction in 2011 for contravening a prohibition or restriction in a domestic violence order (domestic). There is nothing in the material before me, however, that suggests that this crime was committed against a child.
As the Respondent noted, however, Mr Erradi has committed several crimes against officials in the performance of their duties. This is reflected in either the nature of the crimes committed or in the circumstances of the offending.
As for the nature of the crimes committed, as previously stated, Mr Erradi has been convicted of a charge of assaulting a public officer, obstructing police officers and resisting an officer in the execution of duty.
As for the circumstances of offending, the use of carriage service crimes committed by Mr Erradi often entailed abusive and vulgar calls being made to members of the police force, while the victim of the stalking offence for which Mr Erradi was convicted in 2015 was a member of the police force.[39]
[39] G4,38
This constitutes a further reason to regard Mr Erradi’s offending as serious, and I do so.
Subject to the principle addressed in [50]-[54] above, the sentence imposed by the courts for a crime or crimes.
In terms of this factor, the sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine[40]).
[40] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [202]
In this matter, as was the case in Bartlett and Minister for Immigration & Border Protection[41], Mr Erradi “…contrived to continue his offending in circumstances where he … received multiple warnings and/or concessions from the sentencing courts in the form of community service orders, grants of bail, probation and previous terms of imprisonment.”
[41] [2017] AATA 1561 at [32]
While his initial offending in Australia attracted community correction orders and fines, Mr Erradi ended up being sentenced to imprisonment on two occasions, in November 2015 and November 2016. As noted by the Judge presiding at Mr Erradi’s sentencing hearing in November 2016, Mr Erradi’s offending escalated after he had already contravened two community correction orders.[42]
[42] G4,44
The Respondent contends that the sentences of imprisonment imposed on Mr Erradi constitute objective evidence of the seriousness of the offences involved. I agree.[43] The imposition of any term of imprisonment reflects a view that the offence concerned was serious. In this regard, “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[44] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[45]
The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
[43] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [202] The sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine).
[44] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34]
[45] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22]
The Respondent submits that Mr Erradi’s offending is consistent, frequent, sustained and repetitive and that there has been a trend of increasing seriousness and frequency of offending since Mr Erradi’s arrival in Australia.
Subject to one (minor) exception, I accept that submission.
As for seriousness, Mr Erradi accepts that the charges for which he was convicted in November 2016 represented an escalation in his offending[46] (reflective of the views expressed by the presiding Judge when sentencing Mr Erradi in November 2016).[47]
[46] Applicant’s SFIC [35]
[47] G4,44
As for frequency, while this is simply a matter of perception, it seems to me that there has been no increase in offending frequency, but this is measured against a high base. Mr Erradi’s offending has been frequent.
His offending has also been consistent and repetitive in the sense that (as I suggested earlier) it reveals at least two trends or patterns. In that offending Mr Erradi has shown a lack of respect for Australia’s law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework. Secondly, he has also shown a consistent preparedness to threaten and harass others through his misuse of carriage services.
The cumulative effect of repeated offending
Neither party made submissions specific to this factor. Nevertheless, I find that the cumulative effect of Mr Erradi’s offending has been deleterious to not only those immediately affected but also to the Australian community at large. For instance, as I mentioned earlier, as a result of Mr Erradi’s conduct in early 2015 police officers reported feeling threatened, harassed and intimidated while one officer felt apprehension and fear for her safety. The victim of the stalking for which Mr Erradi was convicted in November 2016 was affected to such an extent that he felt it necessary, temporarily, to close his business and move (along with his family) out of his home.[48]
[48] G4,37
As for the community, quite apart for the potential psychological impact of the abuse and threats conveyed through his use of carriage services, there was the real risk that Mr Erradi’s constant engagement with police and emergency services operated to prevent the timely provision of those services to persons actually in need of them.[49] Indeed, police resources were said to have been badly compromised as a result of Mr Erradi’s conduct in early 2015.[50]
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending
[49] G4,36
[50] DPP v Erradi [2015] VCC 1672 [18]
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Risk of reoffending
I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community consideration. This is, as I mentioned earlier, the risk to the community should Mr Erradi commit further offences or engage in other serious conduct. In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should Mr Erradi engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[51]
[51] Direction 79, 13.1.2(1)
As to the nature of harm to individuals or the Australian community should Mr Erradi commit further offences or engage in other serious conduct, I refer to the comments I made earlier in the context of considering the cumulative effect of Mr Erradi’s repeated offending. In summary, if Mr Erradi were to again engage in offending of the type engaged in by him in the past:
·individuals (particularly those serving the community, such as police officers) might well become concerned as to their safety and greatly inconvenienced by steps taken to address those concerns (like the victim of Mr Erradi’s stalking in 2016 who felt it necessary to close his business and move out of his home, temporarily).
·The community might well be severely inconvenienced and exposed to unnecessary risks and delays due to police and emergency service resources being badly compromised consequent upon the misuse of carriage services.
As to the likelihood of Mr Erradi committing further offences or engaging in other serious conduct, on the material before me I am not satisfied that it is likely but nor am I satisfied that it is unlikely. I am, however, satisfied that the risk of Mr Erradi re-offending is significant.
As the Judge presiding at Mr Erradi’s sentencing hearing in November 2016 said “[t]here can only be very guarded prospects for … [Mr Erradi’s] rehabilitation.”
Her Honour had presided at a sentencing hearing for similar offending approximately one year earlier (in November 2015). At that time there was, apparently, some confidence concerning Mr Erradi’s prospects of rehabilitation subject to him being given appropriate assistance and being compliant with his medication. Within the space of around two months after the November 2015 sentencing, however, Mr Erradi was again offending. While Mr Erradi had not been provided with appropriate assistance promptly, when it was provided Mr Erradi ceased to take advantage of it and disengaged with the relevant health services[52] (reflected in a failure to attend what was characterised as his first appointment for drug and alcohol treatment on 13 April 2016).[53]
[52] G4,40
[53] G30
I note that the opinion I have expressed in terms of the risk of Mr Erradi re-offending stands in stark contrast to that expressed by Mr Taylor in the psychologist’s report. Mr Taylor opined, in relation to Mr Erradi, that he “is at no discernible risk to the community or of re-offending in any way” and that the risk of him re-offending “can be reasonably assessed as non-existent.”
I do not attribute any weight to these opinions of Mr Taylor. If the psychologist’s report is to be relied upon by Mr Erradi it is up to him to show how Mr Taylor’s expertise applies to the facts so as to produce the opinions he has expressed.[54] This has not been shown. Indeed, the reverse appears to be the case. The task of assessing the likelihood of Mr Erradi committing further offences is one entrusted to the Tribunal. It involves an evaluative judgement made in all the circumstances. Those circumstances are not confined to a consideration of matters that would fall within what is likely to be Mr Taylor’s field of specialised knowledge. Accordingly, the opinions which Mr Taylor expresses about the risk of Mr Erradi re-offending are likely not to be ones based wholly or substantially on Mr Taylor’s expertise. In so concluding I do not intend to comment on the utility in proceedings such as these of opinions expressed by psychologists based, at least in part, on widely accepted risk needs and objective risk assessment tools. Mr Taylor did not employ such a tool.
[54] Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 at [37]
Further and quite apart from the issue concerning Mr Taylor’s expertise, in arriving at his opinions, Mr Taylor relied on matters of fact unsupported by material before me. For instance, he stated that Mr Erradi had engaged in a substantial programme geared to recovery and rehabilitation. Mr Taylor did not identify the programme. The material before me does not suggest that such a programme has been engaged in (a matter I consider in greater detail later). Mr Taylor suggested that Ms J will agree to a shared parenting, flexible, arrangement, that she is “unconditionally” supportive and that she will provide (along with others) sustained family support to Mr Erradi. These matters were said by Mr Taylor to be a major indicator of a future stable life. As will be seen later, Mr Taylor’s perspective of these matters does not accurately reflect the factual position, as disclosed in the material before me. Indeed, it became clear at the hearing of this proceeding that Ms J refuses to talk directly to Mr Erradi and only communicates with him through an intermediary, Mr Erradi’s brother. Similarly, Mr Taylor asserted that Mr Erradi had a solid occupational history and had excellent work prospects. Again, on the material before me, neither assertion is an accurate reflection of the facts.
In addition, any preparedness I might have had to place weight on the opinions expressed in the psychologist’s report was not assisted by the general failure (contrary to the Tribunal’s guideline concerning expert opinion evidence) to identify in it the sources for the factual information on which Mr Taylor relied other than by reference to non-specific descriptions (such as “various documentation” provided by Mr Erradi’s solicitors and Mr Erradi’s personal history notes[55]).
[55] Noting that those notes did not constitute material before the Tribunal
Mr Erradi’s more recent offending occurred in the context of his substance abuse and mental instability.[56]
[56] G4,43
As for his substance abuse, I am not confident that, if released into the community, Mr Erradi would not again indulge in what has been a long-standing habit. As at November 2016 his substance abuse problems had subsisted for some years.[57] They are said to have started in 2011 after, and as a consequence of, Mr Erradi’s separation from his then wife and child,[58] a proposition corroborated by her[59] and by the director of the Sydney Moroccan Association.[60] I harbour some doubt as to whether this is so. I note that the Judge presiding at Mr Erradi’s November 2016 sentencing hearing considered that Mr Erradi’s substance abuse commenced somewhat earlier and was the cause of his marital strife[61]. This view is consistent with material in Mr Erradi’s prison medical health records. In an assessment conducted on admission to remand in June 2016 Mr Erradi was reported as indicating that he currently used “ice” (which the Tribunal understands to be a reference to methamphetamine), that he used it weekly, that his most recent use had been in May 2016, and that he had started using it in August 2009 (i.e., well before his separation from his then wife).[62]
[57] G4,38
[58] G9,80
[59] Letter of 22 February 2020
[60] Letter of 21 February 2020
[61] G4,38
[62] Reception Medical Assessment of 13 June 2016

Mr Erradi states that he has had counselling for his alcohol abuse[63] and I note that, in September and October 2019 and again in January 2020, while in detention, Mr Erradi attended what is characterised as weekly “life skills” directed, in part, at issues concerning substance abuse. In September 2015, however, Mr Erradi was apparently of the view that he would not need assistance to stay off alcohol and drugs, although he was said to be open to the idea of participating in Alcoholics Anonymous programs.[64] I note that there is no evidence of Mr Erradi participating in such programs and that Mr Erradi had resumed his drinking and use of methamphetamine within a matter of two months or so after being freed into the community in November 2015.[65]
[63] Statement of Mr Erradi
[64] Prison health records, Psychiatrist’s notes of 3 September 2015
[65] G4,42
As for Mr Erradi’s mental instability, the submission made on his behalf appeared, in essence, to be that he was unlikely to re-offend because his offending was, in a material way, the result of serious mental health issues[66] and he is now engaged in a mental health care plan that addresses his treatment needs.[67] An alternative to the latter component of that submission might be being put, albeit that nothing was said about it on behalf of Mr Erradi at the hearing of this proceeding. This alternative is, in effect, that there is no risk of Mr Erradi re-offending because his mental health issues are now resolved.
[66] Applicant’s SFIC [57]
[67] Applicant’s SFIC [38]
I accept that Mr Erradi has had mental health issues and I accept that there is a causal link between those issues and Mr Erradi’s offending.[68] I do not, however, accept that I can now be satisfied that there is little risk of Mr Erradi re-offending (or that he is unlikely to re-offend) because of engagement with a mental health care plan or because his mental health issues are resolved.
[68] G4,43
First, as I see it, Mr Erradi’s submission exaggerates the significance of the causal link between his mental health issues and his offending while underplaying the role played by Mr Erradi’s substance abuse. At least in terms of Mr Erradi’s recent offending, “substance abuse obviously played a central role”.[69]
[69] G4,43
This is not to say that Me Erradi has not had issues. I note that:
·In September 2013, while living in Lakemba, New South Wales, Mr Erradi was referred to a psychiatrist and was said to be suffering from major depression.[70] While it is not clear that he then saw a psychiatrist, he did end up seeing a psychologist for several sessions, and was said to be showing signs of improvement.[71]
·In October 2014, while in Bunbury, Western Australia, Mr Erradi would appear to have been referred to a psychologist for further treatment, and was then said to be suffering from generalised anxiety.[72] Mr Erradi did not, apparently, follow up in relation to this treatment and ended up being made the subject of a court ordered admission to a psychiatric hospital where he remained as an in-patient for around three weeks. Mr Erradi’s evidence was that no diagnosis was then made.          Further, no treatment or medication was then prescribed.[73]
·In 2015 Mr Erradi returned to Victoria. He spent most of that year in remand.        He was placed in Chilwell Unit at the Melbourne Remand Centre, a unit for prisoners with mental health issues. He was assessed by a psychiatrist, who, after the third consultation on 15 October 2015, made a provisional diagnosis of a delusional disorder or psychosis and prescribed the anti-psychotic, Olanzapine. That apparently had the effect of stabilising Mr Erradi’s mood and it appeared that his mental health had improved.[74] A subsequent diagnosis made by a forensic psychologist in 2015 was to the effect that Mr Erradi was suffering from an adjustment disorder with mixed disturbance of emotions and conduct.                 The psychologist went on to opine that Mr Erradi’s mental health problems were in partial remission and that imprisonment had had a salutary effect on him so that he would not re-offend.[75] At his sentencing hearing, the Judge presiding stressed that, in order for Mr Erradi not to re-offend, it was important that he take his prescribed medication.[76]
·In February 2016 a psychiatrist diagnosed Mr Erradi as having an adjustment disorder with depressed mood in the background of anxious, dependent and      anti-social personality traits.[77] The same forensic psychologist that had seen        Mr Erradi in 2015 saw him again in 2016. At that time 2016 he considered that     Mr Erradi was suffering from at least one and possibly two adjustment disorders and also from a persistent depressive disorder with melancholic features and mood-congruent psychotic features.[78] In June 2016 a doctor (who I infer was then Mr Erradi’s general practitioner), in a letter addressed to “whom it may concern,” stated that Mr Erradi was under treatment for paranoid psychosis and that he was then homeless and thought to be unable to take his medication regularly.[79]
·In a discharge summary of 7 June 2018 Mr Erradi’s mental health issues were summarised in terms of a “borderline personality disorder.”[80]
[70] G34,G35
[71] G33,G38
[72] G37
[73] DPP v Erradi [2015] VCC 1672 [10]
[74] DPP v Erradi [2015] VCC 1672 [15]
[75] IBID at [17]
[76] IBID at [21]
[77] G4,40
[78] G4,42
[79] G29
[80] Prison medical health records
It is said on Mr Erradi’s behalf that his most recent offending occurred when his mental health issues were undiagnosed[81] and that he is now addressing those issues via his engagement with a mental health care plan.
[81] Applicant’s SFIC [30]
This is not the case. His most recent offending occurred in 2016. As I indicated earlier, diagnoses were made with respect to Mr Erradi’s mental health issues before then, and a form of treatment had been prescribed (olanzapine). In any event, Mr Erradi would have been aware that he had mental health issues at least as early as 2013 and had a personal responsibility to seek and follow treatment for them. In this regard, I note Mr Erradi’s failure to heed the warning given to him in his sentencing in November 2015 about the necessity to take medication, a warning that was repetitive of one given by a prison psychiatrist to Mr Erradi while he was still in remand.[82]
[82] IBID, 12 November 2015, Psychiatrist’s notes; reminder to Mr E of the need to see a general practitioner to get his medication continued
As for Mr Erradi’s engagement with a mental health care plan, I do not accept that his issues are being addressed via such a plan. Indeed, there is no material before me on the basis of which I could be satisfied that Mr Erradi’s mental health issues are currently being treated or that they would be treated if Mr Erradi was released into the community.
I note that it was contended on behalf of Mr Erradi that the treatment he had received (Olanzapine) had effected a marked improvement.[83] As was disclosed on questioning at the hearing of this proceeding, however, Mr Erradi no longer takes any medication for mental health issues, presumably on the basis that any such issues he had are now resolved (a proposition to which I will return). This leaves the content of the mental health care plan with which Mr Erradi is said to be engaging unclear. It seems to comprise[84] the treatment provided while in prison (something which would not be ongoing were Mr Erradi to be released into the community), the “life skills” and other courses in which Mr Erradi participated principally in the period October 2019 to January 2020 and certain other courses in relation to which Mr Erradi achieved a competency level, courses conducted while he was in prison in 2016 and 2017.[85] The fact of Mr Erradi’s involvement in these courses is not, of itself, sufficient to inspire confidence that Mr Erradi’s mental health issues have been, and will remain, addressed and I do not consider that this involvement amounts to an engagement with a (or at least a meaningful) mental health care plan.
[83] Applicant’s SFIC [32]
[84] Applicant’s SFIC [37-38]
[85] G26, G27 and G28
I turn now to the proposition that Mr Erradi’s mental health issues are now resolved. As I have already indicated nothing was said in support of this proposition at the hearing of this proceeding. Indeed, it is a proposition that runs counter to one made on Mr Erradi’s behalf, being that he “has ongoing health needs for which he requires ongoing treatment.”[86] Nevertheless, it is one reflected in the psychologist’s report submitted on behalf of Mr Erradi.[87] In it Mr Erradi’s condition was said by Mr Taylor to have stabilised after Mr Erradi had “engaged in a substantial programme geared to recovery and rehabilitation.” Using a mental evaluation checklist, Mr Erradi’s performance was said to be intact across all domains of mental status. Mr Erradi’s “period of psychological distress (‘mental illness’) …has wholly remitted”. He has “excellent foundations for safeguarding and maintaining his psychological help”.
[86] Applicant’s SFIC [70]
[87] It is also reflected to some extent in Mr Erradi’s brother’s statement of 23 February 2020 in which he opined that Mr Erradi is now in an excellent state mentally
I attribute little weight to these opinions.
I mentioned earlier Mr Taylor’s reliance on matters of fact unsupported by material before me. In addition, he expressed opinions on matters extraneous to the issue before him that suggest that he was not simply acting as an independent expert opining impartially on matters within his field of expertise.[88] For instance, according to Mr Taylor, if Mr Erradi required to return to Morocco, the human cost will be felt over two generations or more; 20 months in detention is “a prolonged and unreasonable period of time of inhumane administrative detention”; and the decision not to revoke “may also be seen to reflect bureaucratic-based xenophobic attitudes.”
[88] Contrary to the Tribunal’s guideline concerning the provision of expert evidence, the psychologist’s report contained no acknowledgement by Mr Taylor that he had an overriding duty to provide impartial assistance to the Tribunal.
Mr Taylor’s opinion that Mr Erradi’s risk of re-offending is non-existent appears in the psychologist’s report to be tied to the view that Mr Erradi’s offending occurred in the context of severe psychological distress but that he is now psychologically stabilised. Implicitly, the final step of the proposition is that Mr Erradi will remain so stabilised. Mr Taylor referred to “indicators of positive potential psychological health” and it was in this context, in particular, that reliance was placed on matters of fact not established in the material before me. It was also in this context that Mr Taylor referred to a need for Mr Erradi to “have future and timely sessions with a clinical psychologist”. Mr Taylor contends that this need ought not be viewed as compromising his prognosis for sustained recovery. How those sessions can be needed, however, but not compromise that prognosis or at least render it somewhat contingent is unclear. Insofar as those sessions are needed in order to maintain Mr Erradi’s mental health, much depends on Mr Erradi’s ongoing willingness to seek and engage with appropriate treatment outside an institutional context. Mr Erradi’s history, however, is such as to suggest that any faith in his doing so may well be misplaced.
Further, Mr Taylor was not called to give evidence. His not being made available for questioning, without explanation, lessens the weight to which I might otherwise have been minded to give to the opinions he expressed about Mr Erradi’s mental health condition and prognosis.
In assessing Mr Erradi’s risk of re-offending, in addition to his substance abuse and mental health issues, I have had regard to issues concerning his insight and remorse, work prospects and support network.
Mr Erradi has been said to have shown considerable insight into his offending,[89] acknowledging that his offending was his own fault.[90] He has said he is very sorry for what has happened.[91] That he is remorseful is a proposition echoed in several letters and statements in support.[92]
[89] Psychologist’s report
[90] G4,38
[91] Mr E’s statement of 24 February 2020; G8,72
[92] Letter of 21 February 2020 of the Director of the Moroccan Sydney Association; Letter of 20 February 2020 from Mr Erradi’s sister-in-law; statement of Mr Erradi’s brother of 23 February 2020
While I accept that Mr Erradi is remorseful about the position he finds himself in I suspect that any insight he has as to his personal responsibility for it is somewhat qualified. He told Mr Taylor that his offending behaviour was not deliberate, which, I infer, resulted in Mr Taylor’s propositions that Mr Erradi was “somewhat blindly” led into his offending by psychological, social and cultural factors and that he suffered from perseveration (a concept that would appear to encompass the automatic repetition of an action)[93] making him unable to stop the behaviour which resulted in his misuse of a carriage service.[94] Hence, on behalf of Mr Erradi, it was submitted that, in his offending, he was not “…willingly engaging in threatening or unlawful conduct”.[95] The implication is that Mr Erradi was some sort of automaton not responsible for his criminal conduct. While Mr Erradi’s moral culpability for his criminal conduct was reduced somewhat by his mental health issues, the proposition that he could not stop that conduct and that he was not a willing participant in it suggests a failure to accept personal responsibility for his actions.
[93]Oxford reference-at Psychologist’s report - it is difficult to reconcile a proposition about an inability to stop conduct along with Mr Taylor’s acceptance that Mr Erradi made the calls to the police because he believed he had been treated unfairly by them and that he had an ability to manage his perseveration symptoms but that ability was compromised by his substance abuse
[95] Applicant’s SFIC [35]
As for Mr Erradi’s work prospects, to some extent they might be influenced by the extent of support available from his support network (which I will address soon). His work history, however, is not such as to suggest that his work prospects are particularly bright. Mr Erradi claims to have worked as a delivery driver in the period 2009 to 2011, a cleaner in the period 2011 to 2013 and a process worker in the period 2013 to 2016.[96] In the material before me, however, there is little documentary evidence of this work history. From that material it would appear that Mr Erradi had, in the 2015 financial year, worked as a process worker for around 310 hours[97] and that Mr Erradi was also employed at the end of the 2014 financial year.[98] According to Mr Erradi, however, this documentary material was not a full reflection of his work history. His evidence was such as to suggest a pattern entailing employment for periods of around six months, followed by gaps in employment of up to around six months. Even accepting that evidence, I do not see this as a particularly positive work history, especially considering that Mr Erradi has been incarcerated for substantial periods in and from 2015.
[96] G8,73
[97] G24, pay slip indicating gross pay year to date in March 2015 had been around $6500 at a rate of around $21 per hour
[98] G25, which refers to child support payment employer withholdings in June 2014
As for work prospects, I do note the statement made by the director of the Moroccan Sydney Association in his letter of 21 February 2020 that a third party will offer Mr Erradi a job in painting.[99] I do take this statement into account but note, however, that it is made by a person not called to give evidence about a statement made by a third party who has not, himself, made any statement in this proceeding.
[99] I also note Mr Erradi’s brother’s statement on 23 February 2020 to the effect that he will help Mr Erradi get a job
As for a support network, Mr Erradi appears to have a substantial level of support from the Victorian Moroccan community. In a petition of support dated 16 February 2020 signed by a number of members of the community reference was made to Mr Erradi’s absolute integrity and to their intent to, on release of Mr Erradi into the community, “ratchet up” their efforts and offer all the support he needs, both financial and moral. In a letter of support from Mr L of 23 February 2020 he indicated that would do his best to help Mr Erradi find accommodation and to assist him, morally and financially, so Mr Erradi can find a job. Mr R in a letter of support of 23 February 2020 stated his preparedness to offer Mr Erradi accommodation and provide any help Mr Erradi might need. Mr B in a letter of support of 23 February 2020 indicated that he would facilitate Mr Erradi’s search for accommodation and a job.
The Sydney Moroccan community would appear to also be supportive of Mr Erradi. In a letter of 21 February 2020, the director of the Moroccan Sydney Association stated that “we will provide him with all the needed support and mentoring to assist him to re-integrate” and to “ensure his post-release success”.
Mr Erradi’s family in Sydney is also supportive. Mr Erradi’s sister-in-law, in a letter of 20 February 2020, stated that she and her family will provide all needed support to assist Mr Erradi’s reintegration into the community. Mr Erradi’s brother, expressed similar sentiments in his statement of 23 February 2020. He said he would offer Mr Erradi accommodation and help him get a job.
In terms of the risk of Mr Erradi re-offending, the weight I give this support network is somewhat diminished by the fact that it would not appear to be of recent origin. Hence, it has not in the past been effective to prevent Mr Erradi’s offending (or, in the context of the support from those residing in Victoria, prevent Mr Erradi from being homeless in 2016).[100] Moreover, Mr Erradi may well not be in a position to draw upon much of the support contemplated in the various letters given his intention, on release into the community, to reside with his brother in Sydney in the short term and in Queensland in the medium term.
[100] G29
Conclusion
I have found that Mr Erradi has committed serious crimes and that his offending has been frequent, repetitive and indicative of a lack of respect for Australia’s’ law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework
I have also found that there is a significant risk of his re-offending.
The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel Mr Erradi’s visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. Indeed, I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
At the hearing of this proceeding the children whose best interests the Tribunal was being asked to take into account were identified as Mr Erradi’s daughter (aged 10), his nephew (aged 12) and one of his nieces (aged 16). Their interests are required to be given individual consideration, to the extent that their interests may differ.
In taking their best interests into account Direction 79 requires that certain factors be considered, where relevant and are addressed in turn:
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).

As for his nephew and niece, it was submitted that Mr Erradi has a strong relationship with them and their father stated that his children were attached to Mr Erradi. It is acknowledged by Mr Erradi, however, that his relationship with them is non-parental. Further, I note that any attachment and relationship that Mr Erradi has with them is one likely to have been developed and maintained absent significant physical contact. Mr Erradi’s brother and his family live in Sydney and Mr Erradi has, on and from 2014, resided outside of New South Wales. Hence, Mr Erradi’s removal from Australia is unlikely to affect materially the status quo from his nephew and niece’s perspective.
As for his daughter, I find that Mr Erradi’s relationship with her is non-parental.
Mr Erradi accepts that his former wife is his daughter’s primary carer.[101] Mr Erradi and his former wife separated in March 2011 when his daughter was around 18 months old. For several months he did not see his daughter as, apparently, Ms J would not allow it.[102] There is, however, little material before me that suggests that Mr Erradi sought to formalise access rights in the face of Ms J’s apparent opposition albeit that, according to Mr Erradi’s brother, Mr Erradi unsuccessfully tried to get legal representation to obtain custody. I note also that, according Ms J, Mr Erradi “invested considerable effort to reconcile and secure shared care of his daughter but …[she] was not ready for it.”[103]
[101] G8,70
[102] Statement of Mr Erradi’s brother of 23 February 2020
[103] G13 and letter of 22 February 2020
Mr Erradi’s evidence is that, in any event, as from around May 2011, he had informal weekly access to his daughter until he moved to Western Australia in 2014, access facilitated by Ms J’s mother. While in Western Australia Mr Erradi said he would fly back to New South Wales to see his daughter fortnightly. In 2015 Mr Erradi moved to Victoria. His evidence was that he would then visit his daughter weekly. From 2015, however, he has not seen his daughter although he speaks to her around three to four times a week (while Mr Erradi’s brother suggests it is a “couple” of times per week[104]).
[104] Dr Erradi’s statement of 23 February 2020
Hence, according to Mr Erradi, he has not seen his daughter for around five years. Even this, however, may overstate his involvement in his daughter’s life.
At Mr Erradi’s sentencing hearing in November 2015 he was said to have had no contact with his daughter since separation from his former wife in 2011.[105] Again, at his sentencing hearing in November 2016, he was said not to have had any contact with his daughter for a long time.[106] Mr Erradi’s brother stated that Mr Erradi’s serious offences in 2015 and 2016 occurred when he was angry, an anger “fuelled with his inability to see his daughter despite his repeated and genuine effort to communicate with the mother of his child...he perceived that nobody helped him to obtain his right to see his daughter.”
[105] DPP v Erradi [2015] VCC 1672 at [9]
[106] G4, 38
Mr Erradi’s lawyers, in what was characterised as a statement of facts, contended that Mr Erradi had remained present throughout his daughter’s life but that his presence had not been extensive due to Ms J not allowing it to be. Further the presence he did maintain was said to have been maintained not by Mr Erradi directly, but through his brother.[107] The implication that Mr Erradi had little contact with his daughter but that his brother maintained contact with his niece is reflected in Ms J’s letter of support.[108] In it she states that Mr Erradi maintained contact with his daughter through his brother.
[107] G9
[108] Letter of 22 February 2020
In October 2017, in requesting revocation of his mandatory visa cancellation, Mr Erradi stated that he had a close relationship with his daughter,[109] that he was intending to seek work in New South Wales to be close to his daughter and that he was a co-provider to her, financially and emotionally.[110] As for the level of contact with his daughter I refer to the Judge’s comments some 11 months earlier. As for his intention to seek work closer to his daughter, it is unclear why he did not do so before 2017. As previously indicated, Mr Erradi moved to Western Australia in 2014 and from there to Victoria in 2015. As for financial support, Mr Erradi stated that he was paying child support until he went into immigration detention. There is some documentary evidence of that, including evidence that in the 13 months from November 2013 a garnishee in respect of child support payments was in place in relation to employer, social security and tax refund payments to Mr Erradi.[111] Further, Mr Erradi’s brother has made ad hoc payments to Ms J which he said were made on Mr Erradi’s behalf, payments which Mr Erradi would repay when financially able to do so. Mr Erradi’s brother characterised his payments to Ms J as financial contributions made by Mr Erradi through his brother’s mediation.[112]
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
[109] G7,60
[110] G8,71
[111] G25, 119-122
[112] Statement of Dr Erradi of 23 February 2020
Mr Erradi does not have, and is unlikely to have, a parental role in relation to his niece and nephew.
As for his daughter, the likelihood of Mr Erradi playing a positive parental role depends, in part, on whether he re-offends. If he were to be released into the community and re-offend, I see it as unlikely that he would play such a role. In this regard, I note my earlier finding that there is a significant risk of Mr Erradi re-offending.
The likelihood of Mr Erradi playing a positive role in his daughter’s life is also a function of him obtaining and exercising access rights in relation to her. In this regard, at the hearing of this proceeding, Mr Erradi’s evidence was that an access arrangement had already been agreed with his former wife, an arrangement which was said to involve him having access to his daughter on weekends, public holidays and school holidays. Mr Erradi said this had been arranged through his brother. His brother’s evidence (which I accept), however, was that an access arrangement is not yet in place but that he was confident one could be agreed given Ms J’s expressed commitment to co-operate and work harmoniously to arrange shared custody and parenting.
I note that an access arrangement is yet to be agreed despite this commitment of Ms J (expressed in a letter of 23 February 2020) being repetitive of one she had expressed on 2 January 2018.[113]
[113] G13
Mr Erradi’s failure to be able to identify accurately the current status of his access rights to his daughter (along with other facts such as his election to move to Western Australia in 2014 and then to Victoria in 2015) causes me to harbor some doubt as to the strength of his professed concern to have and exercise such rights. In this regard, I note that his intention, on release into the community, is, in the short term, to live in Sydney with his brother. His daughter lives in Queensland. This suggests that, at least in the short term, Mr Erradi is unlikely to play a significantly greater role than he is currently playing in his daughter’s life, albeit that I note that:
·both Mr Erradi’s brother and sister-in-law intend to facilitate Mr Erradi’s “reunion with his daughter”; and
·the daughter is quite young and, hence, the time frame in respect of which parental guidance is likely to be required extends beyond the short term.
Mr Erradi has, however, participated in several parenting programs while in detention and these can only have had a positive effect on Mr Erradi’s capacity to have an effective, worthwhile, relationship with his daughter.
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
As for his nephew and niece, there is nothing before me that suggests that his past or future conduct has had or will have a negative impact.
As for his daughter, as admitted on behalf of Mr Erradi, he has not had an extensive presence in her life. This might have had a negative impact if it resulted in her missing out on an element of care not addressed in the circumstances of her upbringing. There is little known about those circumstances apart from the fact that (according to Mr Erradi’s brother) she lives with her mother in Queensland with two siblings and that her mother does not have a stable, full-time, job.
As for Mr Erradi’s likely future conduct, if released into the community and if he reoffends, I suspect that whether this has a negative impact on his daughter will depend on whether he had managed to embed himself into her life at the time of his reoffending. As to this, I have found that the risk of Mr Erradi re-offending is significant.
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
Given that Mr Erradi has had no physical contact for at least five years with his nephew, niece and daughter, and (presumably) only limited contact before then (given, amongst other things, that Mr Erradi was in Western Australia in 2014), there is likely to be no material adverse effect on them if he is removed from Australia, at least when compared to the status quo.
There was a suggestion that time zone differences preclude effective telephone communication with persons in Morocco,[114] (the place to which Mr Erradi is likely to be removed in the decision to cancel his visa is not revoked) but I reject this (and note that parties wishing to speak to each other can do so, as reflected in the fact that Mr Erradi’s brother provided evidence by telephone while in Morocco).
[114] G9,82
It was also suggested that each child would be disadvantaged by Mr Erradi’s removal from Australia as it would reduce the chance of bonds between cousins being developed. I accept that this is so, albeit that this assumes that, when released into the community, Mr Erradi would obtain and exercise significant access rights in relation to his daughter (a matter discussed earlier).
If, rather than the status quo, the comparison was made between the situation that would obtain were Mr Erradi released into the community and that which would obtain were he to be removed from Australia, then (subject to certain qualifications) the likely effect of Mr Erradi’s removal from Australia on all the children is likely to be adverse.
His nephew and niece would miss out on the care of an uncle. His daughter, however, would potentially miss out on much more; the additional support offered by a caring parent. While Mr Erradi’s daughter would in this way be adversely affected by his removal from Australia, I am unable to assess the materiality (or otherwise) of that effect. As I see it, much depends on matters about which there is no significant material before me, such as the extent to which her needs can be satisfactorily addressed remotely (eg, over the telephone) or by subsisting parental care arrangements. I note that Ms J expressed the view that it is very important for her daughter that she maintain regular contact with her father,[115] while Mr Erradi’s brother’s view is that the physical presence of her father was important to mitigate the risk of the daughter suffering psychological problems and that she would be psychologically devastated were Mr Erradi to be removed from Australia.[116] While I appreciate the sentiments underlying these views I do not attribute much weight to them. Ms J’s statement is simply one of belief unadorned by any rationale while Mr Erradi’s brother’s opinions as to potential psychological issues are not supported by any specialised knowledge of relevance to those issues.
[115] Letter of 22 February 2020
[116] Statement of 23 February 2020
I do note, however, that Mr Erradi’s capacity to provide support his daughter financially might be impaired were he to be removed from Australia.
As I indicated, my view that Mr Erradi’s removal from Australia is likely to have an adverse effect on the relevant children is qualified. First, at least in relation to his daughter, it assumes that Mr Erradi would obtain and exercise material access rights were he to be released into the community. Second, there is a risk that the failure to remove Mr Erradi from Australia, rather than his removal, might affect the children adversely if Mr Erradi were to re-offend after being released into the community at a time when he had embedded himself into their lives.
Whether there are other persons who already fulfil a parental role in relation to the child
As for Mr Erradi’s nephew and niece, the parental role is filled by others.
As for Mr Erradi’s daughter, as I indicated earlier, little is known about the circumstances of her upbringing, apart from the fact that she lives with her mother in Queensland with (according to Mr Erradi’s brother) two siblings.
Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)
No views of any of the relevant children are known.
Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect
There is no evidence of this before me.
Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
There is no evidence of this before me.
Overall, in relation to each relevant child, my determination is that revocation of the visa cancellation decision made in relation to Mr Erradi is in the child’s best interests.
Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel Mr Erradi’s visa. The weight I attribute to this consideration is, however, not significant.
As for Mr Erradi’s nephew and niece, the adverse effect on their interests by the removal of Mr Erradi from Australia would be slight. As for his daughter, when considered only in the context of the status quo, there would appear to be little, if any, adverse effect. Mr Erradi’s removal from Australia would preclude a physically proximate relationship but such a relationship has not been in place for around five years (and for possibly much longer). The adverse effect on her which I have determined to exist is one that essentially arises only when assessed in relation to the circumstances likely to obtain were Mr Erradi to be released into the community and then only if he obtains and exercises meaningful access rights and does not re-offend. I harbor some doubts as to whether these contingencies would be satisfied. In the short term at least it is unlikely that Mr Erradi will have and exercise meaningful access rights, given that he does not currently have such rights and his intention is to live in Sydney while his daughter lives in Queensland. As for re-offending, as discussed earlier, I consider that there is a significant risk that he will do so.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.
In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.
Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred, this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[117]
[117] FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR) at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that the “Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
In the result, “…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”[118]
[118] FYBR at [101]-[102]
In the Applicant’s SFIC it was contended that I should accept that the Australian community has several expectations that would, were they to apply, speak in favour of revocation of the visa cancellation decision.[119] Direction 79 does not, however, leave determination of the community’s expectations up to the idiosyncratic tastes of the relevant decision-maker. The enquiry which this consideration engenders does not concern what the Australian community expects in fact, but rather concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[120]
[119] Applicant’s SFIC [55-57]
[120] FYBR at [68].
On behalf of Mr Erradi it was contended that implicit in that part of Direction 79 dealing with the best interests of children is a community expectation that children not be separated from their biological parents. First, Direction 79 makes express the relevant expectation. Second, and in any event, preservation of a physical closeness between a child and each of the child’s biological parents is not an expectation implicit in a consideration of the child’s best interests. One can envisage many scenarios in which separation of a child from a biological parent either may have no effect on the child’s interests (such as might apply where the child and parent have, in any event, been separated for some time and there is little prospect of them again making any physical connection) or may be in the interests of the child (such as in the context of abuse).
As Mr Erradi has engaged in what is regarded in Direction 79 as serious criminal offending, the expectation which the Australian community is deemed to have in the circumstances is that the decision to cancel Mr Erradi’s visa not be revoked. Hence, this consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel Mr Erradi’s visa.
As recognised in FYBR, however, the weight to be attached to this consideration may vary, depending on what is appropriate in the circumstances. As such, that weight might be said to “undulate significantly according to the context of the non-citizen’s offending and the broader landscape of the non-citizen’s general conduct in Australia.”[121]
[121] Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 at [108]

Mr Erradi has engaged in serious criminal offending. In the course of doing so, he has shown a lack of respect for Australia’s law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework, as well as a consistent preparedness to threaten and harass others through his misuse of carriage services. While the Australian community might have a higher level of tolerance for criminal conduct of persons who have lived in the community for most of their life or from a very young age,[122] this is not the case in relation to Mr Erradi.
[122] See the fifth general principle outlined in Direction 79
In this context, not only does the consideration concerning the expectations of the Australian community weigh against a finding that there is another reason to revoke the decision to cancel Mr Erradi’s visa, it does so to a significant extent.
OTHER CONSIDERATIONS
The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.
Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of international non-refoulement obligations; strength, nature and duration of Mr Erradi’s ties to Australia; the impact of non-revocation of Mr Erradi’s visa on Australian business interests; the impact of non-revocation of Mr Erradi’s visa on victims and the extent of impediments if Mr Erradi is removed from Australia.
International non-refoulement obligations
These obligations are ones not to forcibly return a person to a place where they will be at risk of harm from which persons are protected under international agreements such as the Refugees Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights.
Mr Erradi says that when he lived in Morocco his life was threatened by a gang that dealt in drugs.[123] Apparently based on that fear, he applied for a protection visa in 2007 but his application was refused.
[123] G8,75
At the hearing of this matter, his evidence was to the effect that he did not know whether he was still at risk from the Moroccan gang.[124] Put simply, Mr Erradi does not claim that that there is a risk of harm should he be returned to Morocco, just that there might be such a risk. There was no material before me tending to establish the extent let alone existence of that possible risk. I note that in the psychologist’s report there is no reference to Mr Erradi having referred to this possible risk; instead, all that is said is that “Erradi recalls a happy and uneventful childhood.”
[124] Applicant’s SFIC
As I see it, Mr Erradi’s circumstances are not such as to result in Australia’s non-refoulement obligations being engaged (and nor does Mr Erradi claim that they are engaged). For example, it is not contended that any risk faced by Mr Erradi is for a “convention reason” (reasons of race, religion, nationality, membership of a particular social group or political opinion).[125]
[125] Article 1A(2) of the Convention relating to the Status of Refugees
As such, this consideration does not weigh in favour of a conclusion that there is another reason to revoke the decision to cancel Mr Erradi’s visa.
Moreover, quite apart from the issue of non-refoulement obligations,[126] the ephemeral nature of the potential risk of harm raised by Mr Erradi and the absence of any material in support of its existence is such as to preclude its being taken into account in any material way as a circumstance that weighs in favour of such a conclusion.
[126] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Strength, nature and duration of ties
In the context of this consideration Direction 79 requires that regard be had to two further considerations.
How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community
Mr Erradi did not immigrate to Australia until he was 27 years old and did not start offending until around four years thereafter.
Mr Erradi has spent around 13 years in Australia, roughly four years of which has been spent in prison or detention. On his behalf it is contended that in so much of that period as he was free in the community he made a positive contribution by way of his “strong employment history”.[127] In discussing earlier Mr Erradi’s work prospects I noted that, in the material before me, there is little documentary evidence of the history of work which Mr Erradi claims to have engaged in. His evidence at the hearing of this proceeding was such as to suggest a pattern entailing employment for periods of around six months, followed by gaps in employment of up to around six months. I do not see this as a particularly positive work history or, indeed, reflective of a particularly positive contribution to the community.
The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
[127] Applicant’s SFIC [67]
Mr Erradi would appear to have strong and enduring family and social links with persons who are either Australian citizens or permanent residents.
As for family, Mr Erradi’s brother and sister-in-law, along with their three children, two girls and a boy, all live in Sydney. Mr Erradi claims a strong bond with his nieces and nephew[128] and Mr Erradi’s brother asserts that they are attached to Mr Erradi. Both Mr Erradi’s brother and his partner have provided material in support of Mr Erradi’s application to have his visa cancellation decision revoked, suggestive of strong ties. This would appear to be the case particularly in relation to Mr Erradi’s brother. He visited his brother often while Mr Erradi was in prison and they are in contact almost daily. While Mr Erradi was estranged from his former wife, it was Mr Erradi’s brother who often visited her and Mr Erradi’s daughter, providing financial support to them and seeking to act as an intermediary.
[128] G8,68
As for social links, they are apparent from Mr Erradi’s network of support which I described earlier. Again, those links as so described, especially in relation to Messrs L, R and B, appear to be of long standing.
As for the effect of non-revocation of the decision to cancel Mr Erradi’s visa on his immediate family in Australia, I have canvassed that issue in terms of his daughter (and related minors) earlier. As for his brother, sister-in-law and his niece aged 20, there is no material of direct relevance before me but the strength of the ties Mr Erradi has with them suggests that that the effect would be negative, albeit that, in the case of Mr Erradi’s brother, it is an effect somewhat ameliorated by his practice of visiting Morocco every year or so.
Overall, given his family and social links to Australia, I conclude that the strength, nature and duration of Mr Erradi’s ties to Australia are such as to weigh in favour of a conclusion that there is another reason to revoke the decision to cancel Mr Erradi’s visa.
Impact on Australian business interests
Direction 79 requires that I consider the impact on Australian business interests if Mr Erradi’s visa cancellation decision is not revoked but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel Mr Erradi’s visa.
Impact on victims
Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel Mr Erradi’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and Mr Erradi has been afforded procedural fairness.
There is no such information available and, as such, this consideration neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel Mr Erradi’s visa.
Extent of impediments if removed
In the circumstances, Direction 79 requires that I consider the extent of any impediments that Mr Erradi may face, if removed from Australia to Morocco (his home country), in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Morocco), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in Morocco.
An impediment Mr Erradi may face relates to his concern that there might be the risk of harm which I discussed earlier in the context of the non-refoulement consideration, being the risk potentially posed to him by a gang that Mr Erradi said operated in Morocco when he left Morocco. Absent any material as to the existence and extent of this potential risk, however, I do not bring it into account as an impediment of any material extent to Mr Erradi being removed to Morocco.
While there might be some initial difficulties faced by Mr Erradi in re-establishing himself in Morocco, I note that:
·Mr Erradi spent a substantial part of his adult life in Morocco, having left there when he was 27. As such, there ought be no material language, cultural or social barriers to Mr Erradi establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Morocco).
·Mr Erradi would have at least some support network available to him on return to Morocco given that his father lives there and his brother, is a frequent visitor (and I note that Mr B, a friend of Mr Erradi, states that Mr Erradi always talked about the strong bond he had with his family, not only in Australia but also in Morocco).
·As a citizen of Morocco Mr Erradi would be entitled to the same level of social, medical and economic support as any other citizen of that country.
·There is no apparent impediment to his capacity to utilise in Morocco the skills Mr Erradi professed to have in relation to halal butchery.
While Mr Erradi may well be able to re-establish himself in Morocco, I accept the contention made on his behalf that he would be likely to suffer emotional hardship by reason of being separated from his Australian resident family and support network.[129]
[129] G9,84
As to whether hardship of that type would exacerbate or reignite Mr Erradi’s mental health issues is unclear. Mr Erradi states that he will become severely depressed.[130] On his behalf it is contended that he has ongoing mental health needs for which he requires ongoing treatment.[131] Ms J, in her letter of 22 February 2020, says that, if Mr Erradi was deported, it would be psychologically devastating for him as it would be impossible for him to maintain a paternal relationship with his daughter.
[130] G7,74
[131] Applicant’s SFIC [70]
I note, however, that Mr Erradi has lived in areas geographically remote from his family for around the last six years and that he does not currently take medication to address mental health issues. I also note opinions (albeit one to which I have attributed little weight) in the psychologist’s report suggesting that Mr Erradi’s mental health issues have resolved.
Whatever is the case in relation to Mr Erradi’s mental health issues, however, if he still requires treatment for them, there is nothing before me that suggests that the required treatment would be unavailable in Morocco, although I accept that it is likely that Mr Erradi may not be able to access the same level of medical care as he can in Australia.[132]
[132] G9,84
I find that this consideration as to impediments to be faced by Mr Erradi on removal to Morocco weighs in favour of a conclusion that there is another reason to revoke the decision to cancel Mr Erradi’s visa but not significantly.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
As to there being another reason for revocation of the decision to cancel Mr Erradi’s visa, my findings in relation the considerations to which Direction 79 requires that I have regard do not point in a uniform direction.
In particular:
·My findings concerning the primary consideration as to the best interests of minor children in Australia and the “other considerations” (mainly but not solely due to my findings concerning the strength, nature and duration of Mr Erradi’s ties to Australia) offer support for concluding that I am satisfied that there is another reason for revocation of the decision to cancel Mr Erradi’s visa.
·My findings concerning the primary considerations as to protection of the Australian community from criminal or other serious conduct and expectations of the Australian community offer support for concluding that I am not satisfied that there is another reason for revocation of the decision to cancel Mr Erradi’s visa.
In the result, I am not satisfied that there is another reason for revocation of the decision to cancel Mr Erradi’s visa. As I just indicated, this state of non-satisfaction is consistent with my findings in relation to two of the three primary considerations. In this regard, the general position under Direction 79 which has the primary considerations being given greater weight than the other considerations is not displaced in the circumstances of this proceeding. Further, this proceeding is not one in which the one primary consideration supportive of there being another reason for revocation of the visa cancellation decision (the best interests of minor children in Australia) outweighs the other two primary considerations.[133] The weight which the primary consideration supportive of Mr Erradi’s case carries is not significant while the weight which I attribute to the other two primary considerations which do not support Mr Erradi’s case is significant.
[133] Direction 79, cl8(5)
DECISION
As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that Mr Erradi passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that Mr Erradi passes the character test.
I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.
For these reasons the decision under review is affirmed.

I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell

[sgd]........................................................................
Associate
Dated: 3 April 2020

Date of hearing: 23 March 2020

Advocate for the Applicant: Mr Vam Yogendran

Solicitors for the Applicant: Savannah Legal

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

[14] G4,38

Date of hearing:	23 March 2020
Advocate for the Applicant:	Mr Vam Yogendran
Solicitors for the Applicant:	Savannah Legal
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers