Fahad Salahuddin and Minister for Immigration and Citizenship
[2013] AATA 1
[2013] AATA 1
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4800
Re
Fahad Salahuddin
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 7 January 2013 Place Sydney The decision under review is affirmed.
..........[SGD]..............................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION — Visa cancellation — Character test — Ministerial Direction 55 — Consideration of the applicant’s criminal history — Consideration of the applicant’s ties to Australia — Consideration of the applicant’s risk of reoffending
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501
CASES
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
SECONDARY MATERIALS
Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501
Direction [no. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Senior Member A K Britton
Mr Fahad Salahuddin is a 24 year old citizen of Pakistan who migrated to Australia at the age of 12. Last month, after completing a 13 month custodial sentence, he was transferred to Villawood Detention Centre where he awaits the outcome of these proceedings.
Mr Salahuddin arrived in Australia in 2001 with his parents and sister. He left two years later to join his father who had business interests in the United Arab Emirates. He attended school in the UAE for about nine months. Because his father had insufficient time to properly supervise Mr Salahuddin it was decided it would be in his best interests to return to Pakistan and board at the Rawal Cadet College in Islamabad. Mr Salahuddin found the environment at the college to be brutal and militaristic and was deeply unhappy. He returned to Australia in November 2004. Ten months later at the age of 16 he committed the first offence for which he was convicted. Since that time he has been convicted of about 40 offences and served seven custodial sentences.
Mr Salahuddin was warned on a number of occasions that further offending could lead to the cancellation of his visa.
In October of this year a delegate of the Minister for Immigration and Citizenship cancelled Mr Salahuddin’s resident visa. He has now applied to the Administrative Appeals Tribunal for review of that decision.
There is no issue that the power to cancel Mr Salahuddin’s visa may be exercised because he does not pass the “character test” on account of having a “substantial criminal record” (ss 501(2), 501(7)(c) of the Migration Act 1958 (Cth) (the Act)). The sole issue to be decided in this review is whether that power should be exercised in the circumstances of this case.
Exercising the discretion to cancel the visa
On 28 July 2012, the Minister issued a direction under s 499 of the Act, entitled “Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501” (the Direction), which commenced on 1 September 2012. The Direction is binding on decision-makers, including the Tribunal, and sets out the matters that must be taken into account in exercising the power to cancel a person’s visa under s 501 of the Act (s 499(2A)).
The Government’s objectives are set out in the preamble to the Direction:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in, Australia of non-citizens.
(2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The Direction states that the Government is “committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” (cl 6.2(1)) and sets out six principles “of critical importance in furthering that objective” (cl 6.2(1)) which must inform the exercise of the discretion (cl 7(1)):
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction lists a number of “primary” and “other” considerations that the decision-maker must take into account where relevant (cls 7(1)(a) and 8(1)). The Direction instructs that “primary” considerations should generally be given greater weight than the “other” considerations (cl 8(4)).
Two of the four primary considerations are relevant in this matter:
a) Protection of the Australian community from criminal or other serious conduct;
b) The strength, duration and nature of the person’s ties to Australia.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian Community
The Direction instructs that when considering the protection of the Australian community, decision-makers should have regard to the principle that (cl 9.1(1)):
… the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Direction instructs that in the assessment of the “protection of the Australian community” consideration be given to (cl 9.1(2)):
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the person’s conduct to date
The Direction sets out a number of factors that must be taken into account in assessing the seriousness and nature of the criminal offending (at cl 9.1.1(1)):
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, 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;
…
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
…
Nature of the offences
Mr Salahuddin’s criminal history is set out in the Respondent’s Statement of Facts and Contentions. It reveals a pattern of offending commencing from when he was juvenile and ending on the eve of the commencement of his most recent period in custody (1 September 2011). His crimes in the main were property related: shoplifting, larceny, break, enter and steal, and drug related offences. A small number involved violence including two convictions for the offence of assault occasioning actual bodily harm. Many of Mr Salahuddin’s offences were committed while he was on parole. It would appear that he entered a guilty plea in respect of each offence which resulted in a conviction.
The courts initially dealt with Mr Salahuddin’s crimes by way of bonds or non-custodial sentences. As time progressed, his offences were generally dealt with by way of custodial sentences. His longest sentence was for 15 months (nine months non-parole).
Apart from those committed while a juvenile, none of the victims of the offences for which Mr Salahuddin has been convicted were children. None were committed against the elderly or the disabled.
In a personal details form completed at the request of the Department in June 2012, Mr Salahuddin failed to disclose that he had relatives living in Pakistan — a grandmother and two uncles. I do not accept his claim made in these proceedings that the reason he omitted that information was because he had forgotten about those relatives. He also stated on the form “I can’t even speak my language [Urdu] properly”. Urdu is Mr Salahuddin’s first language and the language in which he was educated throughout primary school and on his return to Pakistan in 2004. He admitted in these proceedings to speaking with his father in Urdu. His father is of the opinion that his son is fluent in the language.
In my opinion Mr Salahuddin provided information to the Department of Immigration which he knew to be misleading.
(ii) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The Direction instructs (cl 9.1.2):
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Drug dependence
Mr Salahuddin is addicted to heroin. Many of his crimes related to the need to finance that addiction. His first drug related offences (supply and possess prohibited drug) were committed as a juvenile in February 2006. It is common ground that Mr Salahuddin’s ability to abstain from illicit drug use is central to his risk of reoffending.
Mr Salahuddin is yet to complete or even substantially participate in any drug rehabilitation program. In 2010 he participated in five out of 12 sessions of a Getting SMART (Self-Management and Recovery Training) program. He did not complete the program because he was transferred to another gaol. In May of this year, Mr Salahuddin was placed on, but did not commence, the Getting SMART program. The reason for that is unclear.
Since re-entering custody in September 2011, apart from a short period, Mr Salahuddin has participated in a methadone program. In May 2012, he withdrew from the program for three months, on his account because of pressure from other inmates in the Lebanese Muslim yard where he was then located. He claims that throughout that period he experienced withdrawal symptoms and found it almost impossible to sleep or concentrate. He claims that he found the situation so distressing that he used Buprenorphine (an opiate used to assist people withdraw from heroin and methadone) ever second or third night, which he obtained from inmates within the prison.
According to records produced by the Department of Corrective Services, Mr Salahuddin tested positive for illicit drug use on a number of occasions while in custody, most recently in April 2010. He testified that he has been tested three times during his most recent period in custody (September 2011 to November 2012) and on all occasions the tests have been “clean”.
Since 2009 while in the community Mr Salahuddin has been on a methadone program. There are numerous reports of Mr Salahuddin testing positive for illicit drug use while on those programs. A file note made by the NSW Probation and Parole Service states that on commencing a methadone program in June 2009, Mr Salahuddin reported that he was using $200 to $300 of heroin per day and cocaine. The report noted that, despite missing his methadone dosage on a number of occasions, his urine test were “mostly” clean until he returned to prison three months later. Apparently as a condition of his parole, Mr Salahuddin commenced a drug rehabilitation program conducted by Odyssey House in August 2011. He is reported to have “run away” after 24 hours. On his account, he was hospitalised because of withdrawal symptoms. He claimed that in the four weeks after leaving Odyssey House and before returning to prison for drug related offences, he had placed his name on the waiting lists of alternative drug rehabilitation services.
Alcohol dependence
In May 2010, Mr Salahuddin was assessed by the Department of Corrective Services as being alcohol-dependent. Little information has been provided about his history of alcohol use. It does not appear to have featured significantly in his criminal history.
Post-release rehabilitation plans
Mr Salahuddin testified that if permitted to reside in Australia he intends to undertake a drug rehabilitation program. He told the Tribunal that while he had not made any recent enquiries he would probably return to the Herbert St Clinic, based in St Leonards, Sydney, and go into “detox”. He estimated that it would take between 14 to 20 days to “get off” methadone and a further two months to undertake a rehabilitation program. He said it was his intention to keep himself occupied on his release and after getting off drugs he would look for part-time work.
Mr Salahuddin testified that he now recognises that unless he is able to break his dependency on illicit drugs, the cycle of offending and incarceration will continue and he will have no future. He acknowledges that he has made similar statements in the past but says he now realises that this is his last chance and he is terrified of the prospect of returning to Pakistan. He says he also now appreciates the extent to which he has hurt his parents and is determined to make amends.
Mr Salahuddin’s parents and sister testified that they are committed to assisting Mr Salahuddin break his addiction. Apparently it is only in the last few years that they have come to fully appreciate the extent of their son’s drug use. Both parents now acknowledge the seriousness of their son’s addiction and state that they are prepared to do everything in their power to assist him. His mother testified that she has made some preliminary enquiries about suitable rehabilitation programs. She believes her son probably needs to attend a residential facility but doubts the family has the capacity to fund him to do so.
Both parents state that they believe their son’s stated commitment to break with the past to be genuine. For reasons to which I shall return they have not lived with him since September 2009 or visited him during his two most recent periods of incarceration (a total of 16 months). In the last month, since his transfer to Villawood Detention Centre, they have visited Mr Salahuddin on a regular basis. Mr Salahuddin (snr) testified that during those visits, he observed a marked change in his son and found him to less rude and more humble. Mr Salahuddin’s mother agreed but said she still considered her son to be very immature.
Efforts to reform
Mr Salahuddin has been employed for two periods, most recently in a call centre between June and August 2010. In around 2006, he was employed at a Franklin’s supermarket. While the duration of that employment is not altogether clear, it was probably for about six months.
In 2006, Mr Salahuddin undertook a TAFE course and apparently achieved the equivalent of Year 10 (NSW School Certificate).
Documents produced by the NSW Department of Corrective Services contain some positive comments about Mr Salahuddin’s work ethic in prison. He has undertaken a number of courses, including literacy and computing skills. In April 2012, he reported to an officer of the Department of Corrective Services that he hoped to gain formal qualifications so that he could work in the hospitality industry. He was offered the opportunity to undertake a hospitality course providing he agreed to complete the course which would require that he remain in prison after becoming eligible for parole. Despite expressing some initial enthusiasm he refused to do so. In these proceedings he stated he could not see the point of staying in prison when he became eligible for parole.
Post-release plans
If permitted to remain in Australia, Mr Salahuddin says he plans to return to live with his parents and sister who have recently moved to a two bedroom apartment. They testified that he is welcome to join them.
Mr Salahuddin’s sister stated that she would assist her brother to find employment and had already broached the topic with her employer. She believes her brother would benefit from further education and stated that she is prepared to assist in that undertaking.
Findings and conclusions
The primary consideration — “Protection of the Australian community” — must be applied in light of the principles set out in cl 6.3 of the Direction. These require consideration to be given to the nature and seriousness of the visa holder’s conduct and the risk to the Australian community should the person go on to reoffend. The Direction emphasises the Government’s commitment “to protecting the Australian community from harm as a result of criminal activity … by non-citizens” and points out that “remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding … and will not cause or threaten harm to individuals or the Australian community”.
It has not been suggested that the offences for which Mr Salahuddin has been convicted fall within the class of crimes contemplated by the Direction as being “so serious, that any risk of similar conduct in the future is unacceptable” (cl 6.3(3)). As his Counsel points out, Mr Salahuddin is neither depraved nor a criminal mastermind. None of his offences could be described as particularly serious, even those involving violence. However, as the Direction instructs, the seriousness and nature of Mr Salahuddin’s conduct must be assessed not only by reference to the nature of the individual offences but also by their cumulative effect together with the other factors listed at cl 11.1.1(1) of the Direction. Mr Salahuddin has offended on a regular basis since 2005. As Magistrate Keady remarked on sentencing Mr Salahuddin for the offence of larceny in February 2012, over time he has become a serial offender and “the sentencing options of various kinds … have not dissuaded him from continuing to offend”. This pattern of offending coupled with the breach of numerous undertakings made to the courts and parole services, together with the misleading information provided to the Department, leads me to conclude that Mr Salahuddin’s conduct must be characterised as serious, although not at the most serious end of the scale.
Mr Salahuddin acknowledges that the likelihood that he will reoffend is inextricably tied to whether he is able to break his addiction to illicit drugs. He has yet to complete a structured treatment program, either in custody or the community, nor is there any evidence of him making any concerted attempts to do so. Despite repeatedly stating to the courts and the Department of Immigration that he intends to break with his past and confront his addiction, there is no firm evidence of him taking steps to achieve that objective. Since first being warned by the Department in March 2009 that further reoffending could result in deportation, he has continued to use illicit drugs and to reoffend to fund his habit. The strength of his addiction is evidenced by his actions in using illicit drugs for three months during his recent stint in custody. At that time he was writing to the Department pleading for “one last chance … I’ll make sure you won’t regret it” (letter from Mr Salahuddin to Department 17 June 2012) and had already been formally warned on two occasions that reoffending could result in deportation. While I appreciate that during that period Mr Salahuddin was not using methadone (a decision he felt was forced on him by other inmates), his decision to use illicit drugs while in prison with the knowledge that deportation was a real possibility illustrates his poor judgement, immaturity and the strength of his addiction.
Also troubling is Mr Salahuddin’s dismissive treatment of the opportunity to obtain a qualification that would enable him to work in the hospitality industry. While his reluctance to make a commitment to remain in prison after becoming eligible for parole is understandable, his failure to take the opportunity to undertake the course casts doubt on his claim that he is determined to break with his past and not only undertake rehabilitation but find meaningful employment on his release.
I accept that if Mr Salahuddin were to remain in Australia he would probably receive a greater level of support from his family than that he has received to date. His parents are plainly decent and hardworking people who feel saddened and disappointed by the actions of their son. I accept they now have a better understanding of his condition and are committed to playing a more active role in their son’s rehabilitation. I also accept that they believe that their son is committed to change.
It is a matter of common knowledge that while heroin is highly addictive, some people are able to break that addiction and go on and make a positive contribution to society. Even with the support of his family I think at this point in his life it is unlikely that Mr Salahuddin will be able to beat his addiction. Even if it is accepted that he is genuine in his commitment to stop using illicit drugs, the length of his criminal history, the strength of his addiction, his failure to have undergone a structured rehabilitation program coupled with his immaturity and impulsivity, indicate that even with the help of his parents the odds are stacked against him. I think the risk of Mr Salahuddin returning to drug use if he were to remain in Australia is moderate to high. In my opinion if he were to continue to use drugs in the community it is almost inevitable that he will reoffend.
While the crimes committed by Mr Salahuddin to date are not at the high end of the scale in terms of seriousness, the real risk that he will reoffend leads me to conclude that the primary consideration of the protection of the Australian community weighs heavily against him.
Primary Consideration 2: Strength, duration and nature of the applicant’s ties to Australia
The Direction requires that regard be had to (cl 9.2(1)):
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted, Mr Salahuddin was 12 years old when he arrived in Australia with his parents and sister. Two years later he left Australia for a total of about 15 months. His first offence was committed 10 months after his return from Pakistan.
Mr Salahuddin has now spent a total of three and half years in custody.
Apart from Mr Salahuddin’s criminal colleagues, his only links with members of the Australian community are with his immediate family, all of whom are Australian citizens. While the evidence indicates that that relationship has been under great strain in the past, the link between Mr Salahuddin and his family is strong.
This Consideration weighs in Mr Salahuddin’s favour because he was a minor when he arrived in Australia, has lived here for a total of about 10 years and has strong ties to his immediate family. However, the relatively short period he spent in Australia before he commenced offending, his failure to have made any positive contribution to the community and the absence of any links to pro-social elements of the Australian community (apart from his immediate family) counters the extent to which this Consideration weighs in his favour.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant.
Effect of visa cancellation on person’s immediate family in Australia
The Direction requires consideration of, where relevant, (cl 10(1)(a)):
Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
Mr Salahuddin’s parents testified that if he were to return to Pakistan they would be deeply concerned for his welfare. Mrs Salahuddin stated that the reason she and her husband left Pakistan was because they considered the country to be unsafe and providing no future for their children. She believes her son will be at risk and extremely vulnerable in Pakistan because of his association with the West. She stated that if he were to be deported she does not know what she would do and would consider returning to Pakistan to support him, a prospect she finds abhorrent.
The Minister points to the fact that the family are not and have never been financially dependent on Mr Salahuddin and, if anything, he has been a financial burden on them. The Minister accepts that Mr Salahuddin’s parents and sister are genuinely concerned for his welfare but points to their limited contact since Mr Salahuddin (snr) obtained an Apprehended Violence Order (AVO) against his son in September 2009.
I think it careful not to overstate the significance of the decision taken by Mr Salahuddin (snr) to apply for an AVO. It followed a heated family argument which culminated in Mr Salahuddin throwing a tape dispenser at his father. No one was injured. The decision to seek an AVO in my opinion was motivated more out of a sense of frustration on the part of Mr Salahuddin (snr) than concern for his own safety or that of other family members.
Mr Salahuddin’s parents are devout Muslims who have struggled to come to terms with their son’s drug abuse and lawlessness. In my opinion, their decision to limit contact with their son in recent years does not indicate that his departure from Australia would have only marginal impact on them. Their decision not to visit their son in custody had more to do with their hope that this might teach him a lesson and the shame and embarrassment they experienced during prison visits, rather than evidence of them severing of their ties with their son.
In my opinion, Mr Salahuddin’s family, particularly his parents, will be devastated if he were to be deported. This Consideration weighs heavily in Mr Salahuddin’s favour.
Impact on Australian business interests
Cancellation of Mr Salahuddin’s visa would have no impact on Australian business interests.
Impact of non-cancellation on Australian community and victims of criminal behaviour
There is no evidence to suggest that a decision not to cancel Mr Salahuddin’s visa will impact on the victims of his crimes. There is no evidence that after the commission of his crimes he has threatened, intimidated or, indeed, had any contact with his victims.
Extent of impediments that Mr Salahuddin may face
The Direction requires consideration of, where relevant, (cl 10(1)(d)):
The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
I accept that Mr Salahuddin would suffer significant impediments if he were to be deported on account of his health, cultural barriers and lack of support in Pakistan.
As noted, Mr Salahuddin has an addiction to heroin. He has recently been diagnosed as suffering from Hepatitis B and C. He claims that he was told that he will need to take Interferon (a drug used to treat chronic hepatitis) for 12 months but cannot start treatment while he takes methadone.
Pakistan is a developing country that has been ravaged by political and economic instability for a number of years. Fifty per cent of the population are estimated to live in poverty. The average life expectancy is 66 years, placing Pakistan 170th in a list of 222 countries, in which Australia ranks ninth.
Mr Salahuddin’s parents have no knowledge of any drug rehabilitation programs available in Pakistan and think it improbable any would be affordable. They point out that unlike Australia, health care is not freely available in Pakistan.
While Mr Salahuddin would not face language barriers if he were to return to Pakistan I accept that he would face cultural barriers. He has lived a western lifestyle throughout his teenage years and into his early twenties and is likely to now find Pakistan a foreign and alienating country.
While he has some relatives living in Pakistan, Mr Salahuddin has had no contact with them for over decade. His grandmother lives in some form of communal housing and I accept it would not be an option for him to reside with her. While his parents have not broached the topic, they think it unlikely that their son would be welcome to live with any of his remaining relatives in Pakistan — two uncles and their respective families. Indeed, they are of the opinion that their relatives would refuse to have any contact with him if they were to learn of the reason for Mr Salahuddin’s return.
His mother testified that she would assist her son financially if he were to return to Pakistan and as noted would consider returning to Pakistan to provide him support.
There can be little doubt that if returned to Pakistan Mr Salahuddin will face considerable difficulties. While with the financial assistance of his parents he would be able to maintain basic living standards, there is real possibility that he will not be able to obtain treatment for his addiction or hepatitis.
This Consideration weighs heavily in his favour.
CONCLUSION
The exercise of the discretion to cancel Mr Salahuddin’s visa requires consideration to be given, where relevant, to each of the “primary” and “other” considerations listed in the Direction and any other matter that may be relevant. In addition, it requires a determination of whether the risk of further harm to the Australian community by the applicant is “unacceptable”. As the Tribunal (Justice Downes, President, and Senior Member McCabe) observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations – and without forgetting other considerations that are generally regarded as being of lesser weight – we must ask ourselves: what is the preferable decision in this case?
While the Tribunal was commenting on the predecessor to the current Direction, “Direction [no. 41] – Visa refusal and cancellation under s 501”, which differs in a number of respects to the current Direction, the task and its inherent difficulty remains the same.
Weighing in favour of a decision not to cancel Mr Salahuddin’s visa are the fact that he arrived in Australia as a minor, his strong ties to, and the impact of visa cancellation on, members of his immediate family. Also heavily in his favour are the impediments he will face on his return to Pakistan primarily on account of his health and the uncertainty surrounding the support, if any, he will be provided on his return.
Against this must be balanced the primary consideration of the protection of the Australian community. If there were some basis on which to conclude that there was a reasonable chance that Mr Salahuddin would not reoffend, I think the balance of considerations would tilt slightly in his favour. However, he has repeatedly been warned that further offending is likely to result in his deportation. He has made little efforts to rehabilitate himself and seems at this stage of his life simply unable to contemplate the long term. His conduct during his most recent period in custody indicates that he remains impulsive and immature. Even with the support of his immediate family, I think it likely that he will go on to reoffend. In my opinion, the considerations that favour Mr Salahuddin are outweighed by the high risk that he will reoffend, and for this reason I have concluded that the preferable decision is to cancel his visa and affirm the decision under review.
I certify that the preceding 69 paragraphs are a true copy of the reasons for the decision herein of Senior member A K Britton ...........[SGD].............................................................
Associate
Dated 7 January 2013
Date(s) of hearing 11 and 12 December 2012 Counsel for the Applicant David Burwood Solicitors for the Respondent DLA Piper Australia
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