Ghazaryan and Minister for Home Affairs (Migration) - [2019] AATA 1514

Ghazaryan and Minister for Home Affairs (Migration) [2019] AATA 1514 (27 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1954
Re:Vardges Ghazaryan
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:27 June 2019
Place:Sydney

The Tribunal affirms the decision under review.
.........................[SGD]...............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Armenia – Class BC Subclass 100 Partner Visa – failure to pass character test – Ministerial Direction No. 79 applied – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535
R v Ghazaryan [2016] SASCFC 140
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
SECONDARY MATERIALS
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
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
27 June 2019
INTRODUCTION

The applicant, Mr Vardges Ghazaryan, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner Visa.
The hearing was held in Sydney from 13 to 14 June 2019. The applicant was represented by Mr John Fry OAM. The Minister was represented by Mr Jonathon Hutton from the Australian Government Solicitor.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 1 July 2019.
During the hearing the respondent expressed an intention to ask Mr Ghazaryan questions about alleged misconduct in prison and immigration detention. The Tribunal advised Mr Ghazaryan of his right to silence and against self-incrimination, and that the Tribunal would draw no negative inference should he exercise his rights.
FACTUAL BACKGROUND
The factual background to this application follows:
(a)Mr Ghazarayan was born in 1984 and is a citizen of Armenia.
(b)Mr Ghazaryan first arrived in Australia on 24 March 2002 with his parents.[1] He was 17 years old on arrival and is currently 35 years of age;
(c)
On 10 October 2017 Mr Ghazaryan’s visa was mandatorily cancelled under

s 501(3A) of the Act,[2] following his convictions on 19 August 2016 of Aggravated offence – possess firearm without licence.[3] He was sentenced to three years and six months imprisonment for this offence and, at the time of visa cancellation, was serving this sentence on a full time basis;
(d)Mr Ghazaryan was invited to make representations to have the visa cancellation decision revoked, and did so on 27 October 2017 within the period and in the manner specified under the Act.[4] After considering his representations, a delegate of the Minister decided on 29 March 2019 not to revoke the cancellation of his visa;[5]
(e)By application dated 10 April 2019, Mr Ghazaryan applied to this Tribunal for a review of the delegate’s decision.[6] In Section 3 of the application headed ‘Why do you claim the decision is wrong,’ it states:[7]
The harsh and protracted decision is wrong as the information we provided was not fully and properly taken into account. Family circumstances were obviously not adequaetly (sic) considered and the applicant’s physical, mental and emotional health continues to steadily deteriorate.
[1] Exhibit R1, 56.
[2] Ibid, 121-127.
[3] Ibid, 30.
[4] Ibid, 57-71.
[5] Ibid, 5-21.
[6] Ibid, 1-3.
[7] Ibid, 2.
STATUTORY FRAMEWORK
Section 500(1)(ba) of the Act provides for applications to be made to the Tribunal if a delegate of the Minister decides under s 501CA(4) not to revoke the cancellation of a visa.
The object of the statute of which s 501(3A) is a part is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a fulltime sentence of imprisonment.
The character test is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about the revocation of the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of 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 (“the Direction”). The Direction commenced on 28 February 2019. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[8]
[8] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591 per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
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) 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.
(3) A 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR GHAZARYAN PASS THE CHARACTER TEST?
Mr Ghazaryan has been sentenced to a term of imprisonment exceeding 12 months. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds he does not pass the character test.
ISSUE TO BE RESOLVED
It follows that the discretion at s 501CA(4)(b)(i) of the Act to
revoke the cancellation of

Mr Ghazaryan’s visa on the basis that he passes the character test is not applicable. It therefore remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation should be revoked. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at [38], which the Tribunal respectfully adopts:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked …”
EVIDENCE BEFORE THE TRIBUNAL
Mr Ghazaryan’s representative called the following witnesses at the hearing:
(a)The applicant;
(b)The applicant’s mother, Ms Seda Yegoryan;
(c)The applicant’s sister, Ms Gayane Navasardyan;
(d)Mr Sam Zakarian, a family friend; and
(e)The applicant’s daughter, [name redacted].
G-documents numbering 165 pages[9] and a bundle of documents numbering 82 pages,[10] were taken into evidence. Other documents taken into evidence were letters from:
[9] Exhibit R1.
[10] Exhibit R2.
(a)the applicant dated 27 April 2019;[11]
[11] Exhibit A1.
(b)Gayane Navasardyan dated 22 April 2019;[12]
[12] Exhibit A2.
(c)Seda Yegoryan dated 20 April 2019;[13]
[13] Exhibit A3.
(d)Sam and Aza Zakarian dated 15 April 2019;[14]
(e)John Fry dated 23 April 2019;[15]
(f)Shoushan Navasardian dated 18 April 2019;[16]
(g)Ziad Abboud dated 15 April 2019;[17]
(h)Art and Yana Nersisian dated 16 April 2019;[18]
(i)Goulnara Khederlarian dated 16 April 2019;[19]
(j)Nancy Khederlarian dated 16 April 2019;[20]
(k)Hasmik Grigoryan and Emil Besha dated 18 April 2019;[21]
(l)Vahram Simonyan dated 25 April 2019;[22] and
(m)Abgar Avetisyan dated 18 April 2019.[23]
[14] Exhibit A4.
[15] Exhibit A5.
[16] Exhibit A6.
[17] Exhibit A7.
[18] Exhibit A8.
[19] Exhibit A9.
[20] Exhibit A10.
[21] Exhibit A11.
[22] Exhibit A12.
[23] Exhibit A13.
National Police Certificate and Sentencing Remarks
Mr Ghazaryan’s National Police Certificate[24] discloses that his initial offences in 2006 (‘Resist officer in execution of duty;’ ‘Use offensive language in/near public place/school;’ and ‘Drive on road while licence suspended’) were dealt with by the courts through fines and bonds. His offending began to escalate in seriousness in his mid-20s, as evidenced by the following convictions:
[24] Exhibit R1, 30-32.
(a)8 October 2009: ‘Common assault’ of his former partner and the mother of his child, for which he was placed on a two-year bond and ordered ‘not to assault, molest, harass or otherwise interfere with [his former partner]…;’
(b)8 June 2011: ‘Common assault;’[25] ‘Behave in offensive manner in / near public place / school;’ and Resist officer in execution of duty. Mr Ghazaryan received fines and was again discharged on a bond;
[25] This was a ‘call up’ of the common assault conviction from October 2009, due to Mr Ghazaryan’s 2011 offending occurring within the previously-imposed two-year bond period.
(c)18 January 2012
: Convictions were recorded on 15 charges relating to dishonesty and driving matters, including making false or misleading statements, for which

Mr Ghazaryan received fines and a warrant was issued for his arrest;
(d)15 May 2013
: ‘Robbery while armed with a dangerous weapon,’ for which

Mr Ghazaryan was sentenced in the Parramatta District Court to four years imprisonment, with a non-parole period of two years. The circumstances of this offence were noted by the Supreme Court of South Australia, Court of Criminal Appeal, in R v Ghazaryan [2016] SASCFC 140 at [27]-[28]:[26]
[26] Exhibit R1, 39-53.
27. On 15 May 2013, in the Parramatta District Court, Mr Ghazaryan was convicted of robbery while armed with a dangerous weapon. This offence was committed on 8 September 2011, only three months or so after he had been released on a bond in June of that year … A copy of the sentencing remarks was before the Judge in this matter. The following matters emerged from those remarks:
·     Mr Ghazaryan’s co-offenders were … both members of the ‘Notorious outlaw motorcycle gang’. Mr Ghazaryan was an associate member of the gang at the time;
·     [one co-accused] was selling his Audi car. The victim took $11,000 in cash to a meeting to discuss the purchase. The $11,000 was intended to be a deposit;
·     the victim attended the meeting place with a companion. When they arrived, Mr Ghazaryan produced a black pistol from his pants, pointed it at the victim and demanded the money;
·     the victim gave Mr Ghazaryan the $11,000 in an envelope;
·     the two co-offenders were charged as accessories before the fact to the robbery. They were not present at the time of the robbery;
·
the robbery was committed at a time when Mr Ghazaryan was still subject to the two bonds from 2009 and 2011.

28. … [Mr Ghazaryan] was regarded as the principal offender. Clearly, the robbery was treated as a serious crime.
(e)19 August 2016: Aggravated offence – possess firearm without licence, for which Mr Ghazaryan was sentenced in the District Court of South Australia to three years and six months imprisonment, with a non-parole period of two years and three months. His Honour, Judge Paul Muscat, noted the following during sentencing:[27]
[27] Ibid, 33-38.
… The car you were travelling in was travelling in convoy from Sydney to Adelaide with another car which contained associates of yours. They were all members of the Nomad Outlaw Motorcycle Gang.
The police searched the car looking for drugs. Hidden behind the air conditioning panel in the centre console was a white bag and a semi-automatic pistol. The serial number on the pistol had been removed. The pistol had a magazine attached to it which contained five rounds of .32 calibre ammunition … Inside the white bag were nine further rounds of .32 calibre ammunition.
Upon questioning by the police, you claimed that you did not know anything about the pistol or the ammunition which had been secreted behind the air conditioning panel …
Despite your strong denials, your DNA was found on a swab taken from the pistol.
On 3 June 2016, you pleaded guilty at your committal hearing. The prosecution accepted your plea on the basis that you owned the pistol, that you had hidden it in the compartment behind the air conditioning panel and that you knew that is where it remained throughout the journey from Sydney to Adelaide.
…
… the fact remains that you have committed an extremely serious firearm offence ...
…
… I consider your offence of being in possession of the loaded semi-automatic pistol to be a serious example of its kind. Not only is it objectively serious to have the carriage of, and in close proximity to yourself, a loaded semi-automatic pistol with extra ammunition but you have previously used a similar firearm to commit an armed robbery, thus revealing a disturbing propensity to possess illegal handguns.
On 15 May 2013 you were sentenced by Judge Sides in the District Court of New South Wales in Parramatta for the crime of aggravated armed robbery which you committed on 9 September 2011. I pause to note that was only three months after you were placed on a 12 month good behaviour bond and fined for the crime of common assault.
…
Contrary to your submission to Judge Sides, you do not appear to have severed your ties with members of bikie gangs …
In my view, your continued association and support of members of outlaw motorcycle gangs reflects adversely on your prospects of rehabilitation.

Mr Ghazaryan’s appeal against the August 2016 sentence was dismissed by the Supreme Court of South Australia, Court of Criminal Appeal, on 21 December 2016. Chivell AJ concluded at [65]:
The policy of the legislation, the fact that this was an aggravated offence and that Mr Ghazaryan is a serious firearms offender, the fact that Mr Ghazaryan had a relatively recent conviction for an offence of violence involving a handgun, and the Judge’s finding that Mr Ghazaryan was in possession of a loaded pistol for an illegal purpose, put his offending in the high range of seriousness. The finding that there were significant factors which told against Mr Ghazaryan’s prospects for rehabilitation was justified on the evidence.
Conduct while imprisoned and in immigration detention
The Tribunal notes in evidence Incident Reports compiled during Mr Ghazaryan’s imprisonment.[28] In an entry dated February 2017, it states that Mr Ghazaryan was ‘removed from Mobilong for the Security and Good Order of the prison.’ A December 2017 report describes Mr Ghazaryan’s purported involvement in a physical altercation with another prisoner after reportedly taking the other prisoner’s jumper from the shower room and putting it in his cell. Mr Ghazaryan was also noted in July 2018 to have ‘become abusive and aggressive towards officers.’
[28] Exhibit R2, 58, 73-75.
The Tribunal notes a Client Incident Report (“CIR”) compiled during Mr Ghazaryan’s stay in immigration detention, which purportedly records his involvement in a number of incidents between 16 September 2018 and 6 February 2019.[29] These include alleged participation in the assault of a Sri Lankan detainee, damaging a bed in his room, displaying abusive/aggressive behaviour towards staff, a hunger strike, and suspected association with drug paraphernalia, which returned a positive reading for cocaine. Mr Ghazaryan was invited to comment on the CIR and in a letter dated 23 March 2019 denied the allegations contained in the report, with the exception of the assault matter, for which he admitted punching another detainee in self-defence.[30] During his oral evidence at the hearing, however, Mr Ghazaryan denied punching the other detainee. This matter is dealt with later in these reasons.
[29] Exhibit R1, 111-118.
[30] Ibid, 119.
Mr Ghazaryan’s evidence
Mr Ghazaryan’s submissions centre on the interests of his daughter, mother and sister. He misses close association with his family who have not been able to visit him for the last three years because his 2016 conviction was in a South Australian court and he served his sentence away from his home state of New South Wales. That geographical separation has continued after he was taken into immigration detention in August 2018.
Mr Ghazaryan said he very much regrets the stress his actions have caused his family. He contextualises his offending as occurring because he kept ‘the company of wrong people,’ was ‘naïve…probably easily led,’ and failed to ‘pursue a good education.’[31] He refers to a previous lack of ‘confidence and self-esteem,’ but claims he now has renewed motivation for a ‘fresh start’ in life:
Over the past two years I have been able to deeply reflect on my life and to appreciate even more the the many blessings I have received from my daughter and my other greatly loved family members. With their help and my own Love of God I am now resolved to make a new start in life from now on.
…
I have not completed any special courses whilst in prison to prepere me for my release. However as I have already mentioned I have firmily resolved to led a good and productive life upon my release with a strong support of my loving family and the sake of my daughter. And I shall be entering into courses to prepere me for my new life on the outside, including for my future work.[32]
(Errors in original).
[31] Ibid, 68.
[32] Ibid.
Mr Ghazaryan spoke about his previous relationship with the biological mother of his child, who he met between 2004 and 2006. They resided at his parents’ house until separating in 2009 or 2010, when their daughter was two years old. Mr Ghazaryan claims that he and his mother have cared for his daughter since that time. When asked about custody arrangements with his former partner, Mr Ghazaryan said: ‘I think it was 65:35,’ which the Tribunal inferred was a percentage of care arrangement in Mr Ghazaryan’s favour. When asked if his daughter had any current contact with her mother, Mr Ghazaryan said he was ‘not 100% sure,’ but thought there may be some contact.
Mr Ghazaryan described a close and loving relationship with his daughter, who is now almost 12 years old and who he claims to speak to daily by telephone. He said his daughter often asks him when he was coming home and why he cannot be involved in her life like other fathers, which he found emotionally painful to deal with. Mr Ghazaryan said he did not want his daughter growing up without a father and was determined to live a law-abiding life with her interests at the forefront of his thinking. Mr Ghazaryan said that while he could not change his past, he was determined to change his future. He wanted to be a good father, to look after his family, contribute to the community, and ‘be respectful to everyone.’
When asked to describe his role in the life of his sister’s children; a niece aged five and nephew who was ‘eight or nine,’ Mr Ghazaryan said: ‘When I was out I … play with the kids when I go there every weekend.’ He claims to speak to his niece and nephew by telephone frequently; more so his nephew, because his niece did not ‘remember [him] much.’
When asked by Mr Fry what community contribution he had in mind if released,
Mr Ghazaryan referred to previous volunteer work with the Armenian Church and assistance he had provided to ‘family and friends with their house.’ When asked by Mr Fry to elaborate on the development of his Christian belief, Mr Ghazaryan stated: ‘When I was in prison this time I found God in my heart and started practicing my religion … I’m not the same person … I’ve changed in a lot of ways … I’m religious now.’ When asked if he attended religious services while in prison or immigration detention, Mr Ghazaryan said he did not, preferring to do his ‘own thing’ in his room and by praying with his family and
Mr Fry during telephone calls.
When asked by Mr Fry why he had done ‘bad things’ in the past, Mr Ghazaryan responded:
Everything started back in 2010. I lost my job, separated from my daughter’s mother, my father’s condition was getting worse, I was under too much pressure. I met some people – bad influences … I didn’t know what I was doing at the time.
During cross-examination, Mr Ghazaryan was taken through his National Police Certificate, and agreed it was an accurate record of his convictions. He agreed that his offending had increased in seriousness over time and that he had not grasped the chances arising from the lenient treatment of his early offending. Mr Ghazaryan’s responses to questions about specific offences and convictions follows::
(f)June 2006 offence: When asked about the offence of Drive on road while licence suspended and the circumstances of his licence suspension, Mr Ghazaryan said he did not ‘have much memory’ about it;’
(a)December 2006 convictions: When asked why he had been convicted of ‘Resist officer in execution of duty’ and ‘Use offensive language,’ Mr Ghazaryan stated: ‘I don’t recall that;’
(b)October 2009 conviction:
When asked about his conviction for ‘Common assault,’ which the police records note was against his former partner and mother of his child, Mr Ghazaryan stated: ‘I can’t remember exactly – it had something to do with my daughter. We got into an argument. She started attacking me when we were in the car.’ When asked if he accepted that he had assaulted his former partner,

Mr Ghazaryan said: ‘Yes – I might have pushed her – I can’t remember – she was attacking me.’ When it was put to Mr Ghazaryan that his explanations sounded like he was blaming his former partner for provoking the assault, Mr Ghazaryan responded that he should never have put his hands on a woman and was ‘very remorseful’ for his actions. He agreed that he had been placed on a two-year bond as a result of this conviction, preventing him from seeing his former partner;
(c)June 2011 convictions: When asked about his repeat conviction for ‘Resist officer in execution of duty,’ and ‘Behave in offensive manner in/near public place / school,’ Mr Ghazaryan stated: ‘I don’t recall that.’ When pressed, he stated: ‘I’m starting to remember appearing in court, but not where the incident occurred … I don’t recall the good behaviour bond;’
(d)January 2012 convictions: When asked about his January 2012 convictions on 15 charges relating to dishonesty and driving matters, including making false or misleading statements, Mr Ghazaryan stated:
I was in prison when they charged and convicted me. They never even gave me a chance to defend myself…I had a Queensland licence when I was living with a friend in Queensland. When I moved to Sydney I didn’t transfer my licence. I went to change my licence … The Police officer didn’t believe me … I was never taken to court…They convicted me without even being there …
(e)
When it was put to Mr Ghazaryan that his oral evidence regarding the January 2012 convictions was implausible in light of the court’s satisfaction that the required proofs had been satisfied, he insisted that he could not understand the basis of the convictions against him. When asked if his Queensland licence had been suspended at the time he applied for a NSW licence, Mr Ghazaryan responded: ‘Not to my knowledge.’ When asked what his knowledge was now about the status of his Queensland licence at the time of his convictions,

Mr Ghazaryan responded: ‘I don’t know – I don’t remember;’
(f)May 2013 conviction:
When asked to explain in his own words the circumstances of his conviction for ‘Armed Robbery while armed with dangerous weapon,’

Mr Ghazaryan stated:
Someone came to my house and told me to meet up – had something to do with a car … I was being forced to do it – I was being pressured to go and see these guys and get the money. I did go there. I was injured. I had a neck brace on. They gave me a weapon and said: ‘They’re going to bring money – take the money … I’m very remorseful and I’m sorry.
(g)When asked by the Tribunal why, after realising he had been ‘used’ by negative associates in relation to the armed robbery, he later re-established those negative associations and allowed himself to be used again in respect of his 2016 conviction, he responded: ‘No answer for that.’
(h)
Mr Ghazaryan said he was 27 years of age when he committed the armed robbery in 2011. When asked if he was aware that he was the subject of a good behaviour bond issued by the court at the time he committed this offence, he responded: ‘I don’t know.’ When Mr Ghazaryan was asked if the agreed facts accepted by the court were an accurate description of his interactions with two co-accused,

Mr Ghazaryan said: ‘I didn’t know what the deal was between them.’ When asked about the text message from his mobile, which police contended had ‘lured the victims to the scene’ of the armed robbery,[33] Mr Ghazaryan said the message was sent by his co-accused, stating: ‘They used me. I don’t know what they sent.’ When asked if the NSW Police Facts Sheet tendered to the court[34] was an accurate summary of the circumstances of the armed robbery, Mr Ghazaryan responded:
[33] Exhibit R2, 1.
[34] Exhibit R2, 3-8.
I don’t 100% remember what happened at the time. I had two Xanax for pain … I don’t know whether the pistol was real or not … After, I was told it was a replica – they threw it in the bin. They gave it to the driver to throw it away. I asked them why throw it away and they said it wasn’t real.
(i)It was put to Mr Ghazaryan that his submissions about taking Xanax for physical pain at the time of the armed robbery, was at odds with the publicly-available information about the purpose of Xanax, which was for psychological conditions. Mr Ghazaryan said the Xanax he took was not prescribed by a medical practitioner, but had been given to him by a friend. He claimed that the pain relief prescribed after his motorbike accident did not work well, so he decided to take the Xanax. When asked why he had not returned to a doctor to seek another prescription for a more effective pain-relieving drug, Mr Ghazaryan said: ‘I don’t know – I should have.’ Mr Ghazaryan said the only prescribed medication he now took was ‘one for stomach and one for sleep.’ He had chosen not to take any prescribed medication for his claimed anxiety and panic attacks, submitting that the medication made him ‘feel like a Zombie – when I take it my brain dies … The medication was affecting me and they wouldn’t give me anything else.’
(j)Mr Ghazaryan explained that his association with members of an Outlaw Motorcycle Gang (“OMCG”) commenced because he lived in the same street as some members of the Notorious OMCG. He had coffee with them on a few occasions. Mr Ghazaryan submitted: ‘I didn’t know what I was getting myself into. I thought it was just friends riding bikes.’ When asked if he knew they were members of an OMCG, Mr Ghazaryan said: ‘I knew they were bikies because they wore colours.’ When asked by the Respondent’s representative about a police document accusing him of being an OMCG ‘Sergeant-at-Arms,’ Mr Ghazaryan responded: ‘That’s completely false - you have to be in the club for a long time to earn that position.’ When asked to explain his precise role in the club, Mr Ghazaryan said he was a ‘prospect.’ When asked to elaborate on what that meant, he said: ‘I don’t know how to explain it.’ When asked if he intended to progress to full membership, he stated: ‘I probably did – I don’t remember.’
(k)Mr Ghazaryan was asked about the sentencing remarks in August 2016 that he ‘offended out of a desire to progress from being an associate member of the gang to one of its full members,’ and had not in fact severed his association with the OMCG as he had told the court in 2013. Mr Ghazaryan explained that his submission to the court was that he was: ‘… no longer with Notorious … I think they shut down.’ When asked if they formed a new gang, Mr Ghazaryan agreed some members had and it was called the ‘Nomads.’
(l)2016 conviction: When asked to explain in his own words what happened in relation to his conviction for ‘Aggravated offence – possess firearm without licence,’ Mr Ghazaryan stated:
Back in 2014 I had a very bad gambling habit and I borrowed money from the wrong people. They started putting interest on me and when I couldn’t pay, they threatened my life … They fired some warning shots in my driveway … I don’t know what I was thinking at the time. I’m really sorry and remorseful.
(m)
When asked about the specifics of this offending, including if the people in the two cars travelling to Adelaide with him were members of the Nomads OMCG,

Mr Ghazaryan responded ‘Not the driver of the car I was in.’ When asked about the two persons travelling in the other car, Mr Ghazaryan agreed they were members of the Nomads OMCG. He agreed that he was friends with members of the Nomads OMCG;
(n)When asked why he was travelling to Adelaide in convoy with members of an OMCG, Mr Ghazaryan responded: ‘They were going to see his brother in prison and I was going to see a friend.’ When asked whether the person being visited in prison was one of Mr Ghazaryan’s co-accused from his 2011 armed robbery, Mr Ghazaryan agreed it was.
(o)
Mr Ghazaryan agreed there had been a dash cam recording device in the car he was travelling in. When asked about the court’s finding that the recorded dash cam conversation revealed his willingness to assist in arranging prison meetings, possibly so that his OMCG travelling companions could recruit gang associates,[35]

Mr Ghazaryan responded: ‘That’s false.’ When asked about the pistol and rounds of ammunition located behind the air conditioning unit of the car he was travelling in, Mr Ghazaryan agreed there was a pistol in the car and he had pleaded guilty to possessing it. He cavilled, however, when asked if the pistol was his, stating: ‘It wasn’t mine – I wasn’t the owner of the gun.’ Mr Ghazaryan said the pistol belonged to a ‘friend of a friend’ who he was unwilling to name, but who loaned him the gun, which he had not intended to take to South Australia. When it was put to Mr Ghazaryan that the sentencing remarks noted the prosecution’s acceptance of his plea on the basis that he ‘owned the pistol,’ had intentionally ‘hidden it in the air conditioning panel’ and ‘knew that is where it remained throughout the journey from Sydney to Adelaide,’ Mr Ghazaryan responded ‘I don’t know where that’s coming from.’
[35] Exhibit R1, 37.
Mr Ghazaryan was referred to a pre-sentence report in evidence dated 10 May 2013, in which it is stated: ‘He claims that his time in custody has been a valuable learning experience and that he will be “a different person” when he returns to the community.’[36] It was put to Mr Ghazaryan that despite this undertaking, he committed further offences on release and therefore his current undertaking might be considered similarly unreliable. Mr Ghazaryan responded:
I don’t have these people in my life anymore. I’ve been away a long time from my family … I can’t afford losing my family. I’ve been following my religion and I’ve been a very positive person. Back then I didn’t have the right people around me. I lost my father too, plus I’m grown up now, I’m 35, I’m more mature, I’m more smarter. I don’t want to go back to that life. At the time I didn’t understand the consequences of everything I was doing … I promised my father I’d never repeat that. All these things have affected me mentally, physically and emotionally. I know if I get given a chance it’s my last chance…a lot of things have changed in my life … I’m ready to come home and start a new life. To be a good father and a good son and do what I promised to my dad … I have no reason to go back – that’s not going to happen. I’m not that person anymore – people change.
[36] Exhibit R2, 22.
When it was put to Mr Ghazaryan that he was aged 32 when committing his last offence and therefore relatively mature, he responded that the difference was he was ‘religious now,’ his daughter was getting older, and he ‘realised coming to immigration detention I can lose my daughter for good.’ It was put to Mr Ghazaryan that his repeat offending gave rise to concerns that he had not learned from previous mistakes, elevating concerns about his risk of recidivism. He reiterated that he had changed during his most recent imprisonment and did not want to put himself or his family ‘through this pain again.’
Mr Ghazaryan was asked if he had been well-behaved and respectful while imprisoned. He responded: ‘I think I was – I did my best.’ He was referred to incidents recorded in prison documents, including that he had ‘become abusive and aggressive towards officers’ on 18 July 2018.[37] Mr Ghazaryan stated there had been a ‘misunderstanding’ after he got into a verbal argument with an officer. He claimed that he had been tackled to the floor and handcuffed, stating: ‘They badly bashed me…I reported it.’ When asked why he had been removed from Mobilong Prison for the ‘Security and Good Order of the prison’ in February 2017,[38] Mr Ghazaryan said: ‘I don’t even know the reason.’ When asked about his reported involvement in a physical altercation with another prisoner in December 2017,[39] Mr Ghazaryan stated: ‘I don’t remember.’ When referred to a more detailed record of this incident,[40] described as an ‘altercation’ involving ‘pushing and shoving,’ Mr Ghazaryan stated: ‘We never put hands on each other.’
[37] Ibid, 58.
[38] Ibid.
[39] Ibid.
[40] Ibid, 73.

Mr Ghazaryan was asked if he had been well-behaved and respectful of staff since being taken into immigration detention on 30 August 2018. He responded: ‘Not best behaved.’ When taken to a record claiming he had been involved in the assault of another detainee in company with another person, Mr Ghazaryan stated:
Someone tried to fight me and I didn’t want to fight back. I was doing my morning run and some Sri Lankan guy was doing his workout … He pointed a finger at me and was laughing. I went up to him to ask him why he was pointing his finger at me and laughing … He said come past my room after training – I said ‘no problem.’… I walked in and said what’s it all about … He jumped out of his chair and took a swing at me. I tackled him and walked out … They took me and punished me for six weeks for something I didn’t do. They took his side of the story.
Mr Ghazaryan was asked if he had punched the other detainee, but claimed he had not. When referred to his own written account of this incident dated 23 March 2019, in which he states: ‘I tackled him on the floor with a punch then we left his room,’ [41] Mr Ghazaryan said although he had signed this statement, his sister must have misunderstood him when compiling it. When it was put to Mr Ghazaryan that his earlier evidence was that he had read this statement before signing it, Mr Ghazaryan said he could not read properly and ‘it must have been miscommunication’ with his sister. When asked why the report of the incident referred to a pool of blood on the floor in the other detainee’s room and ‘some blood splatter around the room and bed,’[42] Mr Ghazaryan said: ‘When I tackled him maybe. When I walked out there was nothing wrong with him.’
[41] Exhibit R1, 119.
[42] Ibid, 112.
Mr Ghazaryan explained that his ‘memory problems’ arose from a motorbike accident in 2011, following which he attended hospital where scans were conducted. He said that after those scans he was informed he had ‘brain tissue damage.’ Mr Ghazaryan was referred to the report of consultant neurologist Professor James Lance in May 2013[43] and MRI results from November 2013,[44] which did not support his submission about brain damage. It was put to him these documents showed there was no brain injury at all resulting from the motorbike accident. Mr Ghazaryan insisted he had suffered brain damage, which had caused his subsequent memory problems, anxiety and panic attacks. Neither Mr Ghazaryan nor his authorised representative, Mr Fry, could point to any document in evidence supporting that proposition. Mr Fry said he had relied entirely on the reports of Mr Ghazaryan and his family when making submissions about brain damage.
[43] Exhibit R2, 32-41.
[44] Exhibit R1, 103.
Referring to his years of offending, Mr Ghazaryan stated: ‘Back then I didn’t understand the full consequences.’ When asked at what point he had begun to realise the consequences of his conduct, he replied: ‘the last one,’ referring to his 2016 conviction. When asked why his 2013 conviction for armed robbery was insufficient warning about the consequences, Mr Ghazaryan replied it was, but the most recent offence ‘was more effective’ because he now realised he had a lot to lose and ‘was in a lot of trouble … my deportation … losing my family.’
When asked about any counselling undertaken to deal with reported ‘significant anger issues’ and ‘low frustration tolerance,’[45] Mr Ghazaryan said he had not completed any counselling or personal development courses. He explained that formal assessment by prison authorities was required prior to such counselling, but no recommendation had been made. When asked what courses he planned to do on release, Mr Ghazaryan said it would be up to parole authorities. When pressed, Mr Ghazaryan referred generally to ‘one in Fairfield … parenting … violent offender’s program … it’s around where I live.’
[45] Exhibit R2, 22.
When asked if he had ever returned to Armenia, Mr Ghazaryan said he had not. When asked if he had any relatives in Armenia he replied: ‘No they all left.’ Mr Ghazaryan said he feared arrest if returned to Armenia because of failing to complete his national service obligations, claiming there was a warrant for his arrest. When asked if he had previously made a submission about an arrest warrant in any of the evidence before the Tribunal, Mr Ghazaryan responded: ‘I haven’t.’ When asked by the Tribunal what his knowledge about an arrest warrant was based on, Mr Ghazaryan said his deceased father told him this after returning from Armenia some years ago. When asked what enquiries he had personally made about an arrest warrant, Mr Ghazaryan said: ‘That’s the law in my country...every Armenian knows.’ When asked what law he was referring to, he replied: ‘I don’t know nothing about the law…when you turn 18 you have to go to the Army for two years.’ Mr Ghazaryan was asked about articles in evidence that appeared to suggest citizens of Armenia who are older than 27 can return home and remedy their failure to undertake national service through payment of a fine.[46] Mr Ghazaryan said: ‘they don’t care about the law over there … it’s a corrupt country.’
[46] Ibid, 77-82.
Ms Navasardyan’s evidence
Ms Navasardyan expressed love and support for her brother, who she said had changed and matured in recent years, becoming a stronger person. She had last seen him in early 2016. Ms Navasardyan stated: ‘I understand he reoffended after promising not to, but somehow trouble found him.’ Ms Navasardyan submitted there was no chance Mr Ghazaryan would reoffend, because they had each other to rely upon and he was a ‘much stronger Christian’ who ‘needed to look after his family.’ Referring to the interests of Mr Ghazaryan’s daughter, Ms Navasardyan said ‘every child deserves a father.’ She said that because of her brother’s absence, she had to ‘deal with a lot of responsibilities’ and their mother was much more dependent on her.
During cross-examination, Ms Navasardyan could not say when her brother was last employed, but that ‘he was always looking for a job.’ She had tried to help him get a job, consistent with her undertaking to the court in 2013, but those efforts had been unsuccessful. Although Mr Ghazaryan had been unable to contribute financially to the family, Ms Navasardyan said he had nevertheless made a valued contribution by helping care for their now deceased father, taking his daughter to school, assisting their mother with the shopping, and driving the family to and from church.
Ms Yegoryan’s evidence
Ms Yegoryan said she was suffering a lot of emotional stress following her son’s imprisonment and the death of her husband. That included looking after Mr Ghazaryan’s daughter, who was always asking when her dad was coming home, which she found particularly difficult to deal with. Ms Yegoryan asked that her son be given another opportunity to return home to his family. If released, she submitted he would reside with her, make a valued contribution to their family, and be law-abiding in the future.
Mr Zakarian’s evidence
Mr Zakarian said he had known Mr Ghazaryan’s family since their arrival in Australia. He is god-father to Mr Ghazaryan’s daughter. He saw Mr Ghazaryan approximately every month prior to imprisonment and had last spoken to him by telephone two days before the hearing. Mr Zakarian said he had no knowledge about Mr Ghazaryan’s offending, which he opined had arisen from ‘pressure of life.’ When asked how he knew Mr Ghazaryan had rehabilitated without any knowledge about his offending, Mr Zakarian said he had noted positive changes during their discussions. If Mr Ghazaryan was released into the community, Mr Zakarian said he would always be there to advise and support him. He would also help care for his god-daughter if needed.
Evidence of Mr Ghazaryan’s daughter
Mr Fry called Mr Ghazaryan’s 11 year old daughter as a witness. She recalled spending lots of fun times together with her father and looked forward to the day he could return home. She said that she speaks to her biological mother regularly and stayed with her about four times a month – most recently ‘a few days ago.’
Expert Medical Evidence
Brain Injury
The Tribunal notes Mr Ghazaryan’s oral and written submissions that he suffered ‘brain damage’ as a result of a motorbike injury in 2011:
…I also suffered injury from a motorbike accident in 2011 which has left me with brain damage.[47]
[47] Exhibit R1, 70.
The Tribunal notes the report of Consultant Neurologist, Professor James Lance dated

1 May 2013, which states:[48]
At approximately 13:00 hours on 28 August 2011 he was a passenger on a motorcycle travelling at 40 – 50 kph when he fell backwards, hitting his head on a gutter and losing consciousness for about three minutes …
He was examined in the Emergency Department of Westmead Hospital at 13:55 on 28 August 2011 … A CT scan of his brain was normal and a CT scan of his cervical spine showed only minor degenerative changes…
…
OPINION
I could not detect any evidence of an organic disorder on examining Mr Ghazaryan. I consider that his symptoms are those of a severe chronic anxiety state with chronic tension headache and panic attacks, which warrant continuing psychiatric and psychological care.
(Emphasis added).
[48] Exhibit R2, 32-37.
The Tribunal notes that on 21 November 2013, more than two years after the motorbike accident, an MRI was performed on Mr Ghazaryan’s head. Radiologist Dr John O’Rourke interpreted the MRI on 22 November 2013 as follows:[49]
No MRI evidence of dephasing artefact to suggest petechial or other haemorrhage. There are however several abnormal foci of FLAIR high signal within the white matter. These are not in a specific distribution and certainly do not meet the McDonald criteria for demyelination.
If the patient has ongoing symptoms then neurologist review is recommended and/or a follow-up MRI should be performed in 6-12 months’ time.
[49] Exhibit R1, 103.
Psychologist reports
The Tribunal notes Mr Ghazaryan’s August 2016 sentencing remarks refer to the report of psychologist Mr Allen Fugler:
I have had the benefit of considering a psychological report prepared by Mr Fugler … However, I must be cautious in accepting everything contained in the report, given that it has been proved some of the things you told Mr Fugler about your past offending and the offending before the court, were either untrue or demonstrate an inability to acknowledge the seriousness of your criminal conduct and to accept full responsibility for it. These factors influence your prospects of rehabilitation.
You were born in Armenia, arriving in Australia with your family when you were 17 years of age and settling in Western Sydney. You experienced a happy childhood, enjoying a close and supportive family environment, which still exists today.
You did not achieve well academically. Mr Fugler believes you may have suffered from ADHD as a child as you reported being disruptive in class. You have held down a number of unskilled jobs since leaving school.
…
Your mood when you have been incarcerated, both in New South Wales and now here in South Australia, has been depressed. I note that you have a history of anxiety and panic attacks associated with high levels of stress. Indeed you commenced gambling as a means of reducing your stress, which seems paradoxical, especially as that resulted in you incurring significant debts …
Your father suffers from multiple sclerosis and has recently moved into a nursing home to be cared for, as you are not there to assist your mother in providing him with care …
…
You have an eight-year-old daughter from a previous relationship who you miss now that you are in prison once again.
Mr Fugler has recommended that you are in need of psychological assistance to help you overcome your stress and anxiety problems, coupled with a referral to a psychiatrist who could implement a regime of medication to reduce those symptoms. Above all, Mr Fugler observes that you must break contact with your former bikie associates if you are to ultimately succeed in rehabilitating yourself. As with many things in life, it all comes down to how committed and motivated you are to achieve the necessary changes to improve your situation.
The Tribunal notes the report of psychologist, Mr Phil Gorrell, dated 9 May 2013,[50] commissioned by Mr Ghazaryan’s previous legal representatives. The report states:
[50] Exhibit R2, 24-31.
Mr Ghazaryan told me that:
·     He has only previously been involved in minor alcohol related offences.
…
·     As an associate member of Notorious, to keep his membership he had to do what he was told.
…
·     On the morning prior to committing his offence he was in bed recovering from his motor bike accident.
·     He received a telephone call from one of his co-accused ...
·     …
·     They met and his co-accused told him that they wanted him to rob the person who was purchasing [the] motor vehicle.
·     At the time he was taking Xanax; and due to that felt vague and confused.
·     He agreed to do what [his co-accused] sought for him to do.
·     Due to him feeling sick, and under the influence of Xanax, he did not want to do anything but agreed to act as [his co-accused] were senior members of Notorious and it was his duty as an associate member to comply with their wishes.
·     …
PSYCHOLOGICAL COMMENTS
…
Mr Ghazaryan’s offence appears significantly influenced by senior members of Notorious.
Mr Ghazaryan was used by these people to ensure that they did not find themselves in the legal difficulties that he is now in.
Mr Ghazaryan told me that he consumed four Xanax tablets due to his motor vehicle accident prior to committing his offence. If that was the case, his judgement would have been blurred.
Despite his offence, Mr Ghazaryan has shown real responsibility in the way he cares for his family. Such would suggest that Mr Ghazaryan could lead a positive and productive life in the future.
Community Offender Services – Pre Sentence Report
The Tribunal notes the pre-sentence report in evidence referred to earlier in these reasons,[51] which states in part:
The offender said that he had been a member of an outlaw motor cycle gang for a period of some months but denied being involved in illegal gang activities …
Anger Issues
The offender would appear to have significant anger issues, which is reflected in his criminal history and his management of events both in custody and in the community.
Attitude to the offence
Mr Ghazaryan stated that he had made a mistake and was sorry for what happened. He said that he would like to undo what occurred but attempted to minimise his role, stating that he became involved “as a favour” to his co-offenders. Nevertheless he also said that he cannot blame anyone other than himself.
SUMMARY AND COMMUNITY BASED SENTENCING OPTIONS
The offender presents as having a low frustration tolerance and lacking skills in the area of conflict resolution. Consequently, relatively minor differences with others have a potential to spiral out of control. He appears to have a strong ongoing commitment to his family … He claims that his time in custody has been a valuable learning experience and that he will be a “different person” when he returns to the community.
[51] Exhibit R2, 21-23.
Letters of Support
The Tribunal notes the letters in evidence supporting Mr Ghazaryan’s application by family members and friends. Of note is a preponderance of material lodged by his authorised representative, Mr Fry. Mr Fry states he is actively involved in ‘holistic ministry support for countless numbers of refugees and asylum seekers from many different nations.’ Mr Fry submits he has never met Mr Ghazaryan but has spoken to him frequently by telephone. He expresses ‘complete confidence’ in the judgements he has reached following those telephone conversations and from the personal reports and testimonials of Mr Ghazaryan’s relatives. Given he has never met Mr Ghazaryan and does not appear to have any formal qualifications relevant to the submissions he makes about Mr Ghazaryan’s physical and psychological health and risk of recidivism, the Tribunal places little weight on Mr Fry’s submissions on these points.
In considering references from family members and friends, the Tribunal is mindful of the fact that they routinely provide the most positive perspective about an applicant’s conduct, whereas other members of Australian society might consider the same conduct unacceptable. Care must be taken when determining the weight to be given to references from family members, friends, or those in a personal relationship with an applicant.
Tribunal consideration of Mr Ghazaryan’s evidence
The Tribunal notes Mr Ghazaryan’s frequent inability to recall circumstances of his offending or court actions. His lack of recall came across as a lack of concern for orders of the court. Other responses came across as self-serving, less than forthright, implausible or unpersuasive. At times his oral evidence was in direct conflict with findings of the Court and his own statement. The unreliable nature of some of Mr Ghazaryan’s evidence gives rise to questions about the true extent of his insight and willingness to accept full responsibility for his offending.
The Tribunal does not accept Mr Ghazaryan’s submissions that his frequent inability to recall the circumstances of his offending or court outcomes arises from ‘brain damage’ suffered in a 2011 motorbike accident. There is no evidence of a traumatic brain injury in the medical evidence. Professor Lance notes that a CT scan of his brain on the day of the motorbike accident ‘was normal.’ Professor Lance did not detect any organic disorder almost two years after the motorbike accident. There is also no evidence of any subsequent investigations conducted during the five-and-a-half years since. The Tribunal concludes that Mr Ghazaryan’s claim about brain damage cannot be contextually relevant to his offending or any cognitive incapacity he relies upon at the present hearing.
The Tribunal does not accept Mr Ghazaryan’s evidence that he was entirely truthful with psychologist, Mr Allen Gorrell, when interviewed in 2013. Mr Gorrell recorded in his report that Mr Ghazaryan told him he had ‘only previously been involved in minor alcohol related offences.’[52] It is clear from the evidence, however, that prior to 2013 Mr Ghazaryan committed a number of violent offences that were not ‘minor’ – particularly his 2009 conviction for ‘Common assault’ of his former partner. Moreover, Mr Ghazaryan’s evidence given at the hearing was that his offending has not involved alcohol.
[52] Exhibit R2, 27.
The Tribunal is concerned about Mr Ghazaryan’s continuing efforts to downplay his culpability for the 2011 armed robbery, including claims that he was told the pistol he used was a replica. He also claimed to have been fearful of and pressured into offending by OMCG associates. Mr Ghazaryan similarly attempted to downplay his participation in the armed robbery when interviewed by psychologist Mr Allen Fugler in 2013, denying he had a weapon at all and simply ‘had his hand under his sweater’ during a heated interaction with the victims. The 2013 sentencing remarks rejected that explanation as ‘either untrue or [demonstrable of] an inability to acknowledge the seriousness of your criminal conduct and to accept full responsibility for it.’[53] Rather than being pressured to offend, the court held in 2013 that Mr Ghazaryan’s motivation was ‘a desire to progress from being an associate member of the gang to one of its full members.’[54] The Supreme Court of South Australia, Court of Criminal Appeal, similarly held in 2016 that Mr Ghazaryan’s evidence was at times untrue and an attempt to ‘minimise the seriousness of his criminal conduct.’[55]
[53] Exhibit R1, 34.
[54] Ibid, 36.
[55] Ibid, 50 [48].
Mr Ghazaryan’s explanation at the present hearing that he did not own the pistol found by police in 2016, had not intended to take a pistol to Adelaide, kept it for self-defence following threats about gambling debts, and was travelling to South Australia for a holiday and to see a friend is not accepted. Those explanations were rejected by the court as untrue or incomplete. The court concluded that he went to Adelaide for activities associated with the gang members he was travelling with, and possessed a ‘loaded pistol for an unlawful or illegal purpose.’[56]
[56] Ibid, 37.

Just as the court found in 2013 and 2016 that Mr Ghazaryan’s account of his offending did not reflect full or accurate disclosure, and that he attempted to minimise the seriousness of his criminal offending, the Tribunal concludes his evidence at the present hearing was similarly deficient.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    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;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    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);
i) 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.
Tribunal consideration: The nature and seriousness of the conduct
Mr Ghazaryan agrees that he was convicted of increasingly serious criminal offences between December 2006 and August 2016. All except Mr Ghazaryan’s 2012 offences involved violence or possession of a firearm.
The Tribunal notes the available sentencing remarks and published reasons of the Supreme Court of South Australia, Court of Criminal Appeal, in R v Ghazaryan [2016] SASCFC 140. The relatively lengthy sentences of imprisonment imposed by the court for Mr Ghazaryan’s 2013 and 2016 convictions weigh heavily against him.
Tribunal findings: The nature and seriousness of the conduct
Notwithstanding the supportive letter in evidence, purportedly from his former partner who was the victim of his assault, the Tribunal finds, pursuant to the principle at paragraph 13.1.1(1)(b) of the Direction, that Mr Ghazaryan’s violent crime against a woman is viewed seriously.
The Tribunal finds, pursuant to the principle at paragraph 13.1.1(1)(c) of the Direction, that Mr Ghazaryan’s crimes against officers performing their duties is viewed seriously.
Mr Ghazaryan’s lengthy history of offending over approximately 13 years has had a compounding effect over time. His possession of firearms in the context of his 2013 and 2016 convictions is particularly alarming. He has not been deterred from reoffending by lenient treatment by the courts, or sentences allowing him to remain in the community on conditional liberty, or a previous lengthy sentence of imprisonment in 2013, or his responsibilities as a parent, or the previously compelling medical needs of his father, or the existence of strong family and community support.
The Tribunal finds that Mr Ghazaryan’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states:
1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The general guidance at paragraph 6.2(1) of the Direction about determining ‘whether the risk of future harm from a non-citizen is unacceptable’, in conjunction with the elaboration at paragraph 6.3(4) of the Direction that, ‘in some circumstances … any risk of similar conduct in the future is unacceptable’, appropriately acknowledges the community’s acceptance of some risk regarding the conduct of non-citizens depending on its seriousness. That acknowledgement is equally evident from provisions in our criminal justice system and the rehabilitative opportunities it routinely provides.
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111] (cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as by Gilmour J in Applicant inWAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the Court summarised the task in determining what may constitute an unacceptable risk of reoffending:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
The High Court has observed that past actions are often a reliable basis for determining the probability of future behaviour.[57] The Tribunal notes the context of Mr Ghazaryan’s offending, notably repeat association with members of an OMCG. During his 2013 trial, Judge Sides stated in respect of Mr Ghazaryan’s motivation for associating with the “Notorious” motorcycle gang:
The court is satisfied beyond a reasonable doubt that the motive for his involvement was a desire to progress beyond being an associate member of the Notorious.[58]
[57] Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 574-576.
[58] Extracted in R v Ghazaryan [2016] SASCFC 140 at [54].
During Mr Ghazaryan’s 2016 trial, Judge Muscat rejected Mr Ghazaryan’s explanations that the members of an OMCG he was travelling in convoy with were holiday companions:
I reject your assertion that you were simply travelling to Adelaide for a holiday or that you possessed a pistol solely for protection. I am satisfied that you travelled to Adelaide for activities associated with the gang members you were travelling with or, at the very least, to provide support to them whilst they conducted their activities in South Australia.
…
I am satisfied beyond a reasonable doubt that you were in possession of the loaded pistol for an unlawful or illegal purpose …’[59]
[59] Exhibit R1, 37.
The Supreme Court of South Australia, Court of Criminal Appeal, in R v Ghazaryan [2016] SASCFC 140 reflected at [55] on similar issues:
Whether or not Mr Ghazaryan severed his ties, whatever they were, with the Notorious motorcycle gang, the evidence in this case establishes that he had re-established an association with what is now known as the Nomads outlaw motorcycle gang.
His Honour Chivell AJ further found at [48] and [51]-[53] that Mr Ghazaryan had not been truthful during his 2013 consultation with psychologist Mr Fugler:
… In my view, it is clear Mr Ghazaryan was attempting to minimise the seriousness of his criminal conduct to Mr Fugler. There was ample evidence of his use of a weapon …
…
One further matter is that Mr Ghazaryan told Mr Fugler in relation to the present offending that he had obtained the pistol for self-defence …
That statement was clearly untrue, and inconsistent with Mr Ghazaryan’s plea of guilty to the charge of possession.
This is an aspect of Mr Ghazaryan’s offending … which also justifies the comment of the Judge that Mr Ghazaryan’s answers to Mr Fugler were untrue and indicated an inability to acknowledge the seriousness of his criminal conduct and to accept full responsibility for it.
Mr Fry stated during closing submissions that Mr Ghazaryan is a ‘changed man and will live a law-abiding life.’ He contends this is because of the applicant’s love of family and their continuing support, Mr Ghazaryan’s ‘ever increasing love for the Lord,’ and his having reached a ‘final turning point in his redemption from errant ways of life.’ Mr Fry said that during his frequent telephone conversations with Mr Ghazaryan, he had ‘shared with him the love of the Lord,’ and was now convinced that the interests of Mr Ghazaryan’s daughter in particular would constitute a ‘large and important role in his life.’
If Mr Ghazaryan were to repeat his violent offences like ‘Common assault’ against a female partner, or ‘Robbery while armed with a dangerous weapon,’ serious physical or psychological harm may be inflicted. The Tribunal notes the repeat nature of his violent offending between 2009 and 2016, including while on conditional liberty and after serving a lengthy prison sentence for robbery while armed with a pistol. The armed robbery offence was committed approximately three months after Mr Ghazaryan was fined and placed on a good behaviour bond in 2011.
In relation to employment, Mr Ghazaryan’s evidence is that he has not worked since 2010 and there is no evidence before the Tribunal of any employment in prospect if he is released. Mr Ghazaryan states that if released, he would ‘enter courses to prepare … for my future work.’ In that respect, the possibility of stable employment cannot be considered a protective factor impacting his risk of recidivism. The Tribunal notes, however, that if released, Mr Ghazaryan has been offered stable accommodation at his mother’s home.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The primary contributing factor to Mr Ghazaryan’s violent offending is his association with members of an OMCG, which Judge Muscat considered was an adverse influence on Mr Ghazaryan’s rehabilitation prospects. Notwithstanding the family support and other support Mr Ghazaryan relied upon at his 2013 trial, the evidence shows he again re-established associations with OMCG members and was found in possession of a firearm. The interests of his daughter, the medical needs of his father, the existence of strong family and community support, and a new personal relationship, were insufficient to prevent him from re-establishing those negative associations. The Tribunal can only conclude that OMCG associations in the past were a more influential factor on

Mr Ghazaryan’s decision-making than the protective factors he again relies upon.

Mr Ghazaryan now contends that similar protective factors mean ‘there is no likelihood’ he will reoffend. The Tribunal is unpersuaded by that submission, particularly in circumstances where he has been convicted of dishonesty offences, where the court has previously found aspects of his evidence to have been incomplete or untruthful, and given his continued reliance on submissions previously rejected by the court.
The Tribunal does not accept Mr Ghazaryan’s submission that his associations with the ‘wrong people,’ arose from him being ‘naïve’ or ‘easily led’ or lacking in ‘confidence and self-esteem.’ The Tribunal prefers the conclusion of Judge Sides who found instead that Mr Ghazaryan was motivated by a desire to ‘progress beyond being an associate of the Notorious’ motorcycle gang. Mr Ghazaryan’s continuing submissions to the contrary and false explanations about accompanying members of an OMCG to Adelaide for a ‘holiday,’ and being in possession of a pistol solely for self-defence, give rise to concerns about the reliability of his evidence, level of insight and acceptance of responsibility.
In relation to rehabilitation, the Tribunal notes Mr Ghazaryan’s evidence in his Personal Circumstances Form dated 27 October 2017, in which he states:
I have not completed any special courses whilst in prison to prepare me for my release. However as I have already mentioned I have firmily resolved to led a good and productive life upon my release with a strong support of my loving family and the sake of my daughter. And I shall be entering into courses to prepare me for my new life on the outside, including for my future work.
(Errors in original).
The Tribunal is concerned that the ‘significant anger issues,’ ‘low frustration tolerance’ and lack of skills in ‘conflict resolution,’ which were noted in the May 2013 pre-sentence report,[60] have not been addressed through any rehabilitative course or counselling. The Tribunal is unpersuaded by Mr Ghazaryan’s submission that, having failed to complete ‘any’ rehabilitative or self-development courses within a controlled prison environment over a number of years, he is nevertheless committed to undertaking such courses after release in the community. The Tribunal considers that someone committed to changing their life would have taken more substantial rehabilitative steps by now.
[60] Exhibit R1, 21-23.
In relation to the incidents of misconduct recorded against him in prison and immigration detention, the Tribunal finds Mr Ghazaryan’s explanations unpersuasive and at times

self-serving. The Tribunal also notes the references in evidence about his depressed mood due to incarceration. However, lowered mood or depression does not excuse physical confrontations with others or being disrespectful to custodial staff. The Tribunal is particularly concerned by Mr Ghazaryan’s explanation during the hearing about how he came to be in another detainee’s room, and his attempt to change his previous evidence that he punched another detainee. Although a clear finding on this matter is not possible, the Tribunal is satisfied Mr Ghazaryan’s conduct while imprisoned and in immigration detention has been disruptive at times, reflects a lack of respect for lawful institutions, and is inconsistent with someone with fully developed insight or who has made substantial rehabilitative progress.
The Tribunal does not accept Mr Ghazaryan’s oral submissions about a job being available to him if he were released, which is absent any supporting evidence. When his representative Mr Fry was asked about a similar submission regarding ‘ongoing regular employment’, Mr Fry said he had relied solely on Mr Ghazaryan’s claims that ‘friends in the community will provide employment.’ Mr Fry claimed that in any event, it was encouraging Mr Ghazaryan had his ‘sights set on re-joining the workforce.’ The Tribunal finds there is no evidence to corroborate submissions that an offer of remunerative work awaits Mr Ghazaryan if released and this cannot be relied upon as a protective factor in relation to his risk of recidivism.
The Tribunal places some weight on the letters from Mr Ghazaryan’s family members, but little weight on other letters where there is no reference to the specific nature of Mr Ghazaryan’s offending, or an opportunity to cross-examine the author. Mr Zakarian was the only family friend called to give evidence at the hearing, but had no knowledge of Mr Ghazaryan’s offending. The other supportive letters in evidence are very general in nature and the basis on which they attest to positive changes in Mr Ghazaryan’s character and confidence in his ability to live a law-abiding life in the future is untested through cross-examination.
The community’s perception of risk, given the specific circumstances of Mr Ghazaryan’s case, would be informed by the repeat nature of his violent offences – including while on conditional liberty. The community would have regard to the increasing seriousness of his offending over time, his re-establishment of the same negative OMCG associations from which his past offending arose, the previous insufficiency of protective factors he again largely relies upon, the incidents recorded against him in prison and immigration detention, and his failure to complete any rehabilitative or self-development programs during a lengthy prison sentence.
The Tribunal concludes that Mr Ghazaryan has shown a wilful disregard for Australia’s law enforcement framework which constitutes a real risk of recidivism. The harm that would be caused by a repeat of his violent offending is so serious that it constitutes an unacceptable risk to the Australian community. This primary consideration weighs heavily against revoking the cancellation of his visa.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2(1) of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of any minor children with whom Mr Ghazaryan is associated in Australia.
Mr Ghazaryan is the biological father of an 11 year old child who he says lived with him and his former partner until the child was two years old. Mr Ghazaryan submits in his Personal Circumstances Form dated 27 October 2017:
… Thereafter her living was shared between myself and her mother. [Child’s name redacted] has been in full time care of my mother since my prisonement (sic). Throughout this time I have maintained a very close and loving relationship with my daughter. On a number of occasions she has visited me here in Adelaide prison. We speak together on daily basis by phone and she longs for me to be released and be reunited with her in Sydney.
As the only uncle of the children of my sister … I also enjoy a close family relationship with them.
Clearly the cancellation of my visa and consequent deportation would have devastating impact on my beloved daughter [Child’s name redacted].
[Child’s name redacted] relies heavily on me for loving support and encouragement and for going about her daily life. She greatly misses my daily presence and is looking very much forward to my release from prison and return to be with her.
My sister’s children who are also very connected with me are looking very much forward to my release and return.
The Tribunal notes a letter purportedly from Mr Ghazaryan’s former partner dated

16 October 2017, which states that she remarried after her relationship with Mr Ghazaryan ended. The letter submits that their daughter ‘never wanted to be a part of’ the former partner’s new relationship, electing instead to live with Mr Ghazaryan’s mother. The Tribunal notes in this regard an Income Statement for Mr Ghazaryan’s mother dated 31 October 2017, which shows she is in receipt of the maximum rate of Newstart Allowance, Family Tax Benefit, and has 100% care of an unspecified child. The Tribunal accepts that Mr Ghazaryan’s daughter is cared for predominantly by his mother, but that the child stays with her biological mother approximately four times a month.
Tribunal findings: Best interests of minor children in Australia

The Tribunal accepts on the evidence of Mr Ghazaryan’s daughter, that she loves and misses her father very much. The Tribunal also accepts that Mr Ghazaryan loves his daughter and aspires to play a more prominent parental role in the future.
Through his own actions, however, Mr Ghazaryan has absented himself from his family for prolonged periods. His role in his daughter’s life has been sporadic and unreliable since 2011. This has required others to assume parental and supporting roles, particularly Mr Ghazaryan’s mother, sister and god-parents. The Tribunal also notes the evidence of Mr Ghazaryan’s daughter that she stays with her biological mother approximately four times per month. The evidence supports a finding that less weight should be placed on Mr Ghazaryan’s relationship with his daughter.
Less weight must also be placed on Mr Ghazaryan’s relationship with his sister’s children; a 10 year old nephew and 6 year old niece. His submissions about involvement in their lives are general in nature. There is little information on which to base reliable judgements about how the children’s interests may differ or be affected by his possible repatriation to Armenia. The Tribunal accepts, however, on the evidence of Mr Ghazaryan and his sister, that these two children would undoubtedly miss Mr Ghazaryan if he was unable to remain in Australia.
The Tribunal accepts on the evidence that Mr Ghazaryan has close and supportive relationships with his daughter, niece and nephew. They would be understandably saddened by a decision not to revoke the cancellation of his visa. Their ability to have a closer relationship with him in the future would be more difficult if he could not remain in Australia. The Tribunal finds this primary consideration weighs in favour of revoking the cancellation of Mr Ghazaryan’s visa.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Community expectations are ultimately a matter of judgement for each decision-maker and turn on the specific circumstances of each case.[61] Deputy President Frost of this Tribunal has previously explained that it ‘is within the broad middle ground of our society that the “expectations of the Australian community” are properly sought.’[62]
[61] See Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72].
[62] Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [80].
The Tribunal’s experience is that this primary consideration is not inevitably adverse to an applicant. Consistent with Paragraph 8(3) of the Direction ‘Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ (Emphasis added).
As discussed earlier, the logical extension of the guidance in the Direction at paragraph 6.2(1), and from the principle at paragraph 6.2(4) relating to ‘unacceptable’ risk, is that some risks may be considered ‘acceptable’ by the community. Community expectations inevitably turn on the specific circumstances of each case and encompass the general presumption that people will be given a chance to redeem themselves and realign their behaviour with expected social norms.
Factors to be weighed in assessing community expectations are non-exhaustive and no single factor is determinative. The sort of factors to be considered include:
(a)how long a non-citizen has spent in Australia and what contribution they have made to the community through work and other avenues;
(b)the nature and seriousness of any convictions or other objectionable conduct;
(c)assessment of an applicant’s insight and remorse;
(d)compliance with corrective penalties and whether an applicant has re-offended or been warned by immigration authorities about the consequences for their visa status;
(e)expert evidence about rehabilitative prospects and risk of recidivism; and
(f)any practical or emotional support available to an applicant that may constitute protective factors relevant to recidivism.
The Tribunal has on occasions concluded that the Australian community, informed of the specific circumstances of a case, may consider an applicant deserves another chance and should be permitted to hold a visa. On other occasions the Tribunal has concluded the community would expect the non-citizen should not hold a visa. That broad approach is reflected in the recent decision of Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 at [34].
Tribunal finding: Expectations of the Australian community
In Mr Ghazaryan’s case, the Australian community would acknowledge his contribution to the Australian community through work between 2002 and 2010, and the continuing support shown to him by family members and friends who have submitted supportive letters. The community would be particularly sympathetic to the increased burden carried by Mr Ghazaryan’s mother and sister in dealing with his prolonged absences in prison and immigration detention. The heartfelt and unconditional love of Mr Ghazaryan’s daughter, and understandable desire to have her father return to their family, would also evoke the community’s sympathy.
The community would note, however, that Mr Ghazaryan has received a number of chances following relatively minor offences in 2006 and 2009, which were dealt with by the courts through fines and good behaviour bonds. The community would be concerned about the escalation in his offending since 2009 and that he reoffended while on conditional liberty. The community’s concerns would be heightened by Mr Ghazaryan’s re-establishment of associations with OMCG members following his 2013 conviction, despite repudiating those associations during his trial and undertaking to live a law-abiding life. His claims that his time in custody has been a ‘valuable learning experience’ and that he would be ‘a different person’[63] on return to the community proved illusory. What followed instead was further serious offending and imprisonment. The community would be concerned about Mr Ghazaryan’s inability to recall key details about his offending, court outcomes, and continuing attempts to downplay his own culpability. That includes during consultations with psychologists Mr Fugler[64] and Mr Gorrell,[65] and in claiming that he was pressured into offending by OMCG co-offenders, accompanied OMCG members to Adelaide for a holiday, and possessed a pistol solely for protection.[66] The community’s concerns would be further heightened by Mr Ghazaryan’s involvement in incidents of misconduct in prison and immigration detention.
[63] Exhibit R2, 22.
[64] Exhibit R1, 50-51, [47]-[53].
[65] Exhibit R2, 27.
[66] Exhibit R1, 36-37.
Given the specific circumstances of this case, the community’s tolerance for any further risk of harm from Mr Ghazaryan would be very low indeed. The broad middle ground of Australian society would expect the Minister to refuse to revoke the mandatory cancellation of Mr Ghazaryan’s visa. This primary consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm.[67] Paragraph 14.1 further provides:
(1)       …
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa if the mandatory cancellation is not revoked, it   is unnecessary to determine whether non-refoulement obligations are owed   to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
[67] Direction, para 14.1(1).
Mr Ghazaryan raises the issue of failing to complete his national service obligations in the Armed Forces of the Republic of Armenia, claiming he will be imprisoned if returned. In his oral evidence he submitted for the first time, that his now deceased father told him after returning from a visit to Armenia some years ago, that a warrant had been issued for his arrest. That claim was not previously made in evidence before the Tribunal. The Tribunal also notes his submissions about the effects of Armenian law. The Federal Court, drawing on a decision of the High Court, has previously held in relation to submissions about foreign law:
… It is axiomatic that “foreign law is a question of fact to be proved by expert evidence” (Neilson v Overseas Projects Corporation of Victoria [2005] HCA 54; 223 CLR 331 at [115] per Gummow and Hayne JJ). Although the AAT is not bound by the rules of evidence, it is a matter for the party seeking to rely on foreign law to adduce evidence upon which the AAT may make factual findings as to the content of the foreign law.[68]
[68] DKXY v Minister for Home Affairs [2019] FCA 495 at [41].
Tribunal finding: International non-refoulement obligations
Mr Ghazaryan provides no corroborating evidence to support his fear of arrest from a past failure to fulfil his national service obligations in Armenia. While acknowledging differing views about the merits or otherwise of laws relating to compulsory national service, there is no evidence that any such law in Armenia is other than a law of general application. Such laws tend to bind citizens between certain ages, subject to certain exceptions and exemptions, and cannot be compared to laws applying in a discriminatory manner or that might persecute a particular societal group. In that sense, the possibility of Mr Ghazaryan being required to respond to whether or not he has complied with Armenia’s national service provisions as a citizen of that country, does not of itself constitute a reasonable fear of persecution or other Convention-related harm within the meaning of the Act.
The Tribunal considers that Mr Ghazaryan’s contentions tend to conflate concerns about Convention-related harm and the extent of impediments confronting him if repatriated to Armenia. Given his claimed physical and psychological impediments, it is far from clear how his personal situation, as a 35 year old man who left Armenia at the age of 17, might currently be affected by Armenia’s national service legislation. His claims come across as speculative at best and on the evidence before the Tribunal do not enliven Australia’s non-refoulement obligations as a relevant consideration in this matter.
It follows that this consideration weighs neither for nor against revocation.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Ghazaryan was 17 years old on arrival in Australia, having spent his formative years in Armenia. He did not attend school in Australia, but has lived here for approximately half of his life. Some weight is placed on his positive contribution in Australia through his work ‘gyprocking,’ as a Croissant King Supervisor; and in printer/operator and driver roles. The Tribunal notes on the evidence, however, that he has not worked for most of the last decade and there is no evidence to corroborate a submission that there is any remunerative work in prospect if he is released.
The Tribunal notes Mr Ghazaryan’s evidence about volunteering for the Armenian Church and by helping ‘new arrivals in practical ways.’
The Tribunal notes Mr Ghazaryan commenced offending approximately five years after arriving in Australia when he was aged 22. His offending traverses increasingly serious and violent charges and convictions over the following 13 years, which includes violence against his former female partner and others. Reflecting on the principles at paragraph 6.3 of the Direction, less weight is therefore placed on this consideration.
It is clear from the supporting letters in evidence that Mr Ghazaryan has retained the support of many committed family members and friends, who the Tribunal is satisfied are Australian citizens or have a permanent right to reside in Australia.
Tribunal finding: Strength, nature and duration of ties
Mr Ghazaryan’s claimed volunteer efforts are uncorroborated by supporting evidence from Armenian Church representatives. Given the lack of evidence in this regard and previous concerns about his truthfulness, coupled with his dishonesty convictions, the Tribunal places little weight on his claimed volunteer contribution.
Notwithstanding the serious and prolonged nature of his offending history, the Tribunal is nevertheless satisfied Mr Ghazaryan has strong family and social ties in Australia with Australian citizens or permanent residents, which weighs in favour of revocation.
Tribunal consideration: Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, 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.
There is no evidence that there would be any impact on Australian business interests in the manner contemplated by the Direction, by a decision not to revoke Mr Ghazaryan’s visa cancellation. This consideration is given no weight.
Tribunal consideration: Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any direct evidence from the victims of Mr Ghazaryan’s offending, the Tribunal finds this consideration weighs neither for nor against revocation.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in that country.
In his closing submissions, Mr Fry submitted there would be an ‘almost certain tragic outcome’ if Mr Ghazaryan was returned to Armenia, which adds to the case that he deserves a ‘further opportunity’ to remain in Australia with his family.
Mr Ghazaryan speaks Armenian and the Tribunal can discern no language or cultural impediment to his repatriation. In his written submissions, Mr Ghazaryan refers to practical impediments like ‘no place to live, no family or other support. I will have no job availability as a deportee.’ The Tribunal acknowledges that if returned to Armenia, Mr Ghazaryan would lose ready access to a strong and supportive network of family and friends in Australia, who provide him with practical and emotional support. Having not worked for much of the past decade, he would also lose access to Australian income support and other payments previously made to him. His aspiration to play a more prominent parental role in the life of his daughter would also be significantly complicated, likely causing Mr Ghazaryan significant emotional distress. Under such circumstances, Mr Ghazaryan psychological health may be impacted. He would also be subject to the considerable stress of re-establishing himself in a country he last lived in at the age of 17. That includes immediate imperatives of securing stable accommodation and maintaining basic living standards.
Tribunal findings: Extent of impediments if removed
Mr Ghazaryan is a relatively young man at age 35, with a history of work in Australia prior to 2010. He expresses a desire to live a law-abiding life in the future and to undertake training on release to further enhance his employability.[69] Based on the available medical evidence, the Tribunal does not accept Mr Ghazaryan suffers brain damage that incapacitates him from remunerative work. References to depression in the evidence are linked to Mr Ghazaryan’s incarceration. The Tribunal notes Mr Ghazaryan’s submissions that he does not receive any treatment for the brain injury or anxiety he claims.[70] There is no evidence that the medications Mr Ghazaryan says he currently takes for his stomach and to help him sleep, are not available in Armenia or that he would not have access to the same health or housing or employment support services available to other Armenian citizens.
[69] Exhibit R1, 68.
[70] Exhibit R1, 70.

If he were repatriated to Armenia, however, there are impediments confronting Mr Ghazaryan in re-establishing himself in a country he left as a 17-year old. That includes locating stable accommodation, employment and basic living expenses. His unchallenged evidence is that he has no family or friendship networks to draw on in Armenia, from which to draw a measure of practical and emotional support. It follows that this consideration weighs strongly in favour of revocation.
Any Other Considerations
No additional considerations were advanced by the parties or identified by the Tribunal as relevant to the specific circumstances of Mr Ghazaryan’s application.
CONCLUSION
Mr Ghazaryan’s criminal offending is objectively very serious. Any repeat of his violent offences has the potential to inflict serious harm on members of the Australian community. His convictions and attendant sentences encompass a 13 year period, which is the vast majority of his time in Australia. His offending has increased in seriousness over time, despite lenient treatment by the courts. He has been convicted of assault against his former partner in 2009. Approximately three months after being placed on a 12-month good behaviour bond in 2011, he committed armed robbery with a pistol. His co-offenders were members of an OMCG. Despite submissions to the court about repudiating and severing his association with members of an OMCG, Mr Ghazaryan re-established associations with members of an OMCG after serving a lengthy prison sentence. In 2016 he was again found in possession of a pistol while in company with members of an OMCG, receiving a further sentence of imprisonment.
The protective factors Mr Ghazaryan relied upon at his 2013 trial included the interests of his daughter, the medical needs of his father, the existence of strong family and community support, and a new personal relationship. The Tribunal is unpersuaded by Mr Ghazaryan’s latest submissions that similar protective factors justify a finding that ‘there is no likelihood’ he will reoffend.
The Tribunal notes Mr Ghazaryan’s evidence that he has not completed any rehabilitative or self-development courses during lengthy periods of imprisonment since 2011. The Tribunal is unpersuaded by his submission that he will undertake such courses if released.
The community’s perception of risk, given the specific circumstances of Mr Ghazaryan’s case, would be informed by the repeat nature of his violent offences – including while on conditional liberty, the increasing seriousness of his offending, his re-establishment of the same negative associations contextually relevant to his earlier offending, the previous insufficiency of protective factors he again relies upon to prevent his recidivism, and his failure to complete any rehabilitative programs while imprisoned. The harm that would be caused by a repeat of his violent offending is so serious that it constitutes an unacceptable risk to the Australian community.
As a result of his criminal conduct and sentences of imprisonment, Mr Ghazaryan has absented himself from the life of his daughter for prolonged periods since September 2011. Her interests were insufficient to prevent him from committing numerous criminal offences in the decade after she was born. Others were subsequently required to undertake the primary parental role. In a similar vein, Mr Ghazaryan’s relationship with his ten-year-old nephew and six-year-old niece has been characterised by prolonged absences and infrequent contact. That said, the Tribunal accepts Mr Ghazaryan has a very close and supportive relationship with his immediate and extended family, including his daughter, niece and nephew. The interests of these children weigh in favour of revoking the cancellation of his visa.
Mr Ghazaryan has spent approximately half his life in Australia and has made some contribution through work for approximately eight years. But any such contribution is substantially outweighed by the violent, prolonged and repeat nature of his offending since 2006. The community would expect the Minister to refuse to revoke the mandatory cancellation of his visa.
Of the other considerations relevant in this matter, Mr Ghazaryan has strong ties with members of the Australian community, which weighs in favour of revocation. Although there is no language or cultural impediment to his repatriation, the Tribunal accepts he would face considerable impediments in re-establishing himself in Armenia. He would lose access to established family and social networks in Australia and confront practical impediments like securing stable accommodation, finding work, accessing health and support services, and establishing a new social network. That said, Mr Ghazaryan is a relatively young man who spent the first 17 years of his life in Armenia, was educated there, and continues to speak Armenian fluently. He has previously demonstrated work capacity and, on his own evidence, a renewed motivation to improve himself through future courses and to live a law-abiding and respectful life. There is no evidence to suggest Mr Ghazaryan would not be entitled to the same opportunities or publicly-funded support available to any other Armenian citizen. The Tribunal acknowledges, however, that the impediments arising from his possible repatriation are not insignificant and the ‘Extent of impediments if removed’ consideration weighs strongly in favour of revoking the cancellation of his visa.
Having examined the factors for and against revoking the cancellation of Mr Ghazaryan’s visa individually and cumulatively, the weight of evidence supports a finding that there is not another reason why the decision should be revoked. That is because ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of minor children in Australia,’ and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which favour revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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Associate
Dated: 27 June 2019

Date(s) of hearing: 13 and 14 June 2019

Advocate for the Applicant: Mr John Fry OAM

Advocate for the Respondent: Mr Jonathon Hutton

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	13 and 14 June 2019
Advocate for the Applicant:	Mr John Fry OAM
Advocate for the Respondent:	Mr Jonathon Hutton
Solicitors for the Respondent:	Australian Government Solicitor