Jabari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1492
•26 May 2021
Jabari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1492 (26 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1387
Re:Daneyal Jabari
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:26 May 2021
Place:Perth
The Reviewable Decision, being the decision of the delegate of the Respondent, dated 2 March 2021, not to revoke the cancellation of the Applicant’s Resident Return (subclass 155) visa is affirmed.
..........[Sgd]..............................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Respondent not to revoke mandatory cancellation of visa – character test – substantial criminal record – fraud offences and drug offences – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – non-refoulement obligations not found – best interests of minor children in Malaysia – Applicant is a 49-year-old man who arrived in Australia as a twenty-two-year-old – extent of impediments if returned to Iraq – reviewable decision affirmed
LEGISLATION
Criminal Code 1913 (WA) – s 409(10(c)
Migration Act 1958 (Cth) – ss 36(2)(a), 36(2)(aa), 48A, 197C, 197D, 441, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Regulations 1994 (Cth) – reg 2.52(2)(b)
CASES
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 156 ALD 516
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection and Makasa (2021) 386 ALR 200
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Omar v Minister for Home Affairs [2019] FCA 279
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1045
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, DFAT Country Information Report: Iraq (17 August 2020)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration and Border Protection (Cth), Direction No 75: Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 8, 8(1), 8.1, 8.1(1), 8.1(2), 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(2)(b), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(g), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1, 9.1(1), 9.1(2), 9.1(5), 9.1(6), 9.1(7), 9.2, 9.3
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Member S Burford
26 May 2021
INTRODUCTION
1. The Applicant is a 49-year-old citizen of Iraq who arrived in Australia in 1994 at the age of 22 as the holder of a Refugee (subclass 200) visa.[1]
[1] R2, G18; R1, para [5].
2. In June 2018, a jury found the Applicant guilty of 20 counts of ‘gains benefit by fraud’ pursuant to s 409(1)(c) of the Criminal Code 1913 (WA) (the Criminal Code).[2] On 29 August 2018, the Applicant was sentenced for those offences in the Perth District Court of Western Australia to a total effective sentence of 5 years’ imprisonment.[3] The Applicant is currently incarcerated in Western Australia.
[2] R2, G4, G5.
[3] R2, G5, page 40.
3. On 18 February 2019, the Applicant’s Five Year Resident Return (class BB subclass 155) visa (the Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[4]
[4] Migration Act ss 501(6)(a) and 501(7)(c); G19.
4. On 12 March 2019, the Applicant made a request for revocation of the Cancellation Decision.[5]
[5] R2, G7.
5. On 2 March 2021, a delegate of the Respondent decided under s 501CA(4) of the Migration Act not to revoke the Cancellation Decision.[6] This is the Reviewable Decision that is currently before the Tribunal.
[6] R2, G3.
6. The Applicant lodged his application for review of the Reviewable Decision with the Administrative Appeals Tribunal (the Tribunal) on 9 March 2021.[7] His application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act and that the Tribunal has jurisdiction to review the decision.
[7] R2, G2.
7. The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act) and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.
8. For the reasons below, the Tribunal has decided that the correct and preferable decision is for the Reviewable Decision to be affirmed.
BACKGROUND
9. The Applicant was born ‘Isam Hossein Ahmad’, in Kirkuk Iraq.[8] In or around 2007, the Applicant changed his name to Daneyal M Jabari.[9] He left Iraq for Turkey in 1989 when he was 17 years old.[10] The Applicant registered with the United Nations as a refugee in approximately 1989 and lived in Turkey until 1994, working as a boilermaker and welder.[11]
[8] A3, page 25.
[9] Transcript, page 39.
[10] A3, page 25; transcript, page 9.
[11] A3, page 25; transcript, page 10.
10. Following his arrival in Australia in 1994, the Applicant lived in Adelaide, South Australia and in 1996 the Applicant moved to Mildura, Victoria.[12]
[12] A3, page 25.
11. In 1997 the Applicant returned to Adelaide and then moved to Renmark, South Australia.[13] In 1998 or 1999, he moved to Melbourne. After returning to Adelaide in 2000, he began a relationship with Ms Nurziyanti Mohammad Khan, whom he married in 2003.[14] In November 2005 the Applicant and Ms Khan had a daughter together, Ms M. In 2006 the Applicant and his family moved to Western Australia.[15]
[13] A3, page 25.
[14] A3, page 25.
[15] A3, page 26.
12. The Applicant and Ms Khan separated at some time in 2006, at which time the Applicant moved to Port Hedland, Western Australia. Ms Khan and Ms M remained living in Perth.
13. In or around September 2006, whilst living in Port Hedland, the Applicant began a relationship with Ms Margaret Dale Hawke. Ms Hawke is an Australian citizen and identifies as an Indigenous Australian and a Yamatji woman.[16]
[16] A3, pages 23 and 26.
14. In November 2007, Ms Khan gave birth to the Applicant’s oldest son, Master A.[17] Both Master A and Ms M are Australian citizens. However, they have been residing in Malaysia with their mother since 2008. They left Australia in 2008 as Ms Khan did not hold a visa to remain in Australia.[18] In 2013, Ms Khan remarried in Malaysia but maintains contact with the Applicant.[19]
[17] A3, page 25.
[18] A3, page 25.
[19] A3, page 20.
15. The Applicant has returned on Iraq multiple occasions. Between 11 February 2006 and 12 May 2006, the Applicant travelled to Iraq to explore business opportunities and visit his brother, sister and uncles,[20] and between 12 May 2010 and 10 June 2010, he travelled to Iraq with Ms Khan, Ms M and Master A to visit his mother, brother and sister.[21] The Applicant also returned to Iraq between 20 August 2010 and 9 September 2010, where he travelled to Malaysia first and then on to Iraq.[22]
[20] A3, page 26.
[21] A3, page 27.
[22] A3, pages 26–7.
16. The Applicant made citizenship applications on two occasions, one shortly after arriving in Australia and one in around 2005 which was refused on 24 July 2007.[23] There is limited information regarding the circumstances of the applications or the reasons for refusal. The Tribunal notes that it does not draw any adverse inferences with respect to these unsuccessful applications.
[23] R3, page 526; A3, page 25.
17.
In December 2012, Ms Hawke gave birth to the Applicant’s youngest daughter, Ms J.[24]
Ms Hawke also gave birth to the Applicant’s youngest son Master AH in April 2015.[25] Ms J and Master AH are both Australian citizens and, like their mother, identify as an Indigenous Australians.[26] They live in Port Hedland with Ms Hawke.[27]
[24] A3, page 28.
[25] A3, page 29.
[26] A3, page 29.
[27] A3, page 41.
18. On 30 June 2014, the Applicant was arrested in his hotel room in South Hedland and was charged with ‘Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’ (Methylamphetamine Offence).[28] He was released on bail on 22 July 2014.
[28] A3, page 28; R3, page 359.
19. On 21 March 2015, the Applicant was again taken into custody. He was released into the Australian community on bail on 13 April 2015.
20. On 31 July 2015, the Applicant was convicted of the Methylamphetamine Offence, committed on 30 June 2014, and was taken into custody. On 24 September 2015, he was sentenced to two years' imprisonment for this offence, to be served from 13 June 2015 to account for time spent in custody.[29]
[29] A3, page 29; R2, G4.
21. On 27 April 2016, the Applicant’s Visa was mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act (the Previous Cancellation Decision).[30] The Applicant requested revocation of the Previous Cancellation Decision, which was subsequently revoked on 18 November 2016.[31]
[30] R3, page 541.
[31] A3, page 30; R3, page 541.
22. The Applicant completed his term of imprisonment for the Methylamphetamine Offence conviction on 13 June 2017, however as he had pending charges in relation to other offences, he was released on bail on 4 December 2017.[32]
[32] A3, page 30; A1, para [21].
23. The Applicant was again taken into custody in relation to ‘Gains Benefit by Fraud’ charges and on 22 June 2018 was found guilty of 20 counts of ‘Gains Benefit by Fraud’ (the Fraud Offences).[33] On 29 August 2018, the Applicant was sentenced to a total effective sentence of five years’ imprisonment for the Fraud Offences, to be served from 10 October 2017 to account for time already served. He was made eligible for parole after three years’ imprisonment.[34] A compensation order was also made in favour of the victim of the Fraud Offences, Dr Deshmukh, for the repayment of $340,555.[35] Details of the Fraud Offences are considered further below.
[33] R2, G4; R3, pages 356–8.
[34] R2, G5, page 40.
[35] A1, para [22]; R3, page 150.
24. On 18 February 2019, the Applicant's Visa was again cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act. On the same day, the Applicant was notified of the Cancellation Decision.[36]
[36] R2, G19.
25. On 12 March 2019, the Applicant requested revocation of the cancellation of his visa, and on 5 November 2020 he provided a completed personal circumstances form to the Department.[37] The Applicant lodged a valid revocation request within the required timeframe prescribed by reg 2.52(2)(b) of the Migration Regulations 1994 (Cth).
[37] R2, G7, G8.
26. On 2 March 2021, a delegate of the Respondent decided not to revoke the Cancellation Decision[38] and the Applicant was notified of the Reviewable Decision by hand on 3 March 2021.[39]
[38] R2, G3.
[39] R2, G21, page 140.
27. The 84-day timeframe for the Tribunal to decide this matter ends on 26 May 2021.[40]
[40] Pursuant to Migration Act s 500(6L).
THE HEARING
28. The hearing was held on 10 May 2021 at the Commonwealth Law Courts Building in Perth.
29. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. Both representatives and the Applicant appeared in person. The Applicant indicated that he did not require the assistance of an interpreter.
30. At the hearing, the Applicant made submissions via his representative, gave evidence and was cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:
·Dr Phillip Watts, a clinical psychologist; and
·Margaret Hawke, the Applicant’s partner.
Each of these witnesses appeared via telephone, gave oral evidence and was cross-examined. The Tribunal also asked questions of each of the witnesses.
31. The Tribunal admitted the following documents into evidence at the hearing:
·Applicant’s Statement of Facts, Issues and Contentions (SFIC), dated 19 April 2021 (Exhibit A1);
·Applicant’s statement in reply, dated 5 May 2021 (Exhibit A2);
·Applicant’s bundle of evidence and Applicant’s supplementary bundle of evidence, comprising 62 pages (Exhibit A3).
·Respondent’s SFIC, dated 3 May 2021 (Exhibit R1);
·section 501G documents (G1–G22), comprising 164 pages and lodged with the Tribunal on 24 March 2021 (Exhibit R2);
·Respondent’s tender bundle (R1–R15), comprising 550 pages and lodged with the Tribunal on 4 May 2021 (Exhibit R3).
32. The Tribunal notes that efforts were made to arrange for Ms Hawke to give evidence by videoconference, however it was not possible to for the Tribunal to facilitate such arrangements. Ms Hawke instead appeared by telephone and indicated that she was accompanied by her two children, Ms J and Master AH. At one point during her evidence, Ms Hawke gave the telephone to Ms J, indicating that she wished to speak. Following an objection from the Respondent, the Tribunal indicated to Ms Hawke that as Ms J was a minor, and the Tribunal was taking evidence under oath, it did not consider it appropriate to take evidence from her. The Tribunal explained that Ms Hawke could give evidence addressing the children’s best interest as their mother. The Tribunal also explained that Ms Hawke may consider that the children should not be present for cross-examination, as some of the matters discussed may be inappropriate for the children given their young ages. Ms Hawke indicated that she understood this and did not press the issue of Ms J giving evidence.[41] The best interests of the children are considered further below.
LEGISLATIVE FRAMEWORK
[41] Transcript, pages 53–4.
Migration Act
33. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
34. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
35. The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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 …
(Original emphasis.)
36. A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or …
(Original emphasis.)
37. Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
38. Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
39. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[42] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[43]
[42] Migration Act s 501CA(3).
[43] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
40. Section 501CA of the Migration Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
41. Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
42. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) under s 499 of the Migration Act. Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79), which was revoked on the same date.[44]
[44] Direction No 90 paras 2–3.
43. The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No 79, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[45] In the current application, the parties agreed that Direction No 90 applied in this case and submissions and evidence were prepared on that basis.
[45] See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
44. The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[46] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90.[47]
[46] Direction No 90 para 5.1(4).
[47] Direction No 90 para 6.
45. Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
46. Paragraph 5.2 of Direction No 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
47. Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[48]
[48] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
48. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[49]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[49] Direction No 90 para 8.
49. The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[50]
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[50] Direction No 90 para 9.
50.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S CONDUCT
51. The Applicant has convictions for offences including assault, serious drug offences, and dishonesty offences, as detailed in the annexure to this decision and the condensed criminal history offending table below. As mentioned above, the Applicant has also been convicted of 20 counts of fraud, committed between 2009 and 2011 (for which he was sentenced in 2018), which gave rise to the Cancellation Decision.
Conviction Date Court Offence Offence Date(s) Court Result 29 August 2018 Perth District Court of Western Australia Gains Benefit by Fraud 1 September 2009 – 29 September 2011 20 counts,
19.5 years’ imprisonment
(five years total effective sentence).26 March 2018 South Hedland Magistrates Court Possess a Prohibited Drug (Cannabis) 30 June 2014 $400 fine 24 September 2015 South Hedland District Court of Western Australia Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine) 30 June 2014 Two years’ imprisonment from 13 June 2015,
order for destruction of drugs22 September 2014 South Hedland Magistrates Court Possess a Prohibited Drug (Cannabis) 22 August 2014 $300 fine 15 January 2013 Brisbane Magistrates Court Possessing dangerous drugs Unknown No conviction, recognisance $200[51] 29 October 2010 South Hedland Magistrates Court Possess a Prohibited Drug (Cannabis) 11 August 2010 $450 fine 23 August 2010 Perth Magistrates Court Possess a Prohibited Drug (Cannabis) 7 July 2010 $300 fine 27 February 2008 Perth Magistrates Court No Driver’s License (Fines Suspension) 24 January 2008 $200 fine 21 August 2007 Perth Magistrates Court Common Assault 31 May 2007 $250 fine 9 September 2005 Magistrates Court of South Australia Adelaide False or Misleading Statement (Social Security Payment) 3 August 2000; 7 December 2000 One months’ imprisonment, reparation order of $809.27,
12 months’ recognizance29 March 1999 Magistrates Court of South Australia Port Adelaide False Statement in Claim for Social Security Payment; Obtain Instalment of Payment Not Payable 13 October 1997 –
16 February 1998Six weeks’ imprisonment, $2,471.40 reparation order, good behaviour bond (18 months) 28 June 1999 Magistrates Court of South Australia Port Adelaide Apprehension of Person by Enforcement Officer 28 January 1996 Confirm interstate warrant
3 days’ gaol, suspended order of committal,
$226 fine[51] Nominal punishment – refer to s 19 of Penalties and Sentences Act 1992 (QLD).
Drug offending
52. On 30 June 2014, the Applicant was arrested for possession of 23.6 grams of methylamphetamine at 65% purity with intent to sell or supply. He was convicted of the Methylamphetamine Offence by a jury and was sentenced on 24 September 2015 to two years’ imprisonment. According to the sentencing Judge’s remarks, the Applicant purchased the drugs in Perth and returned to South Hedland where the drugs were found in his hotel room. His Honour Goetze DJC found that the Applicant supplied the drugs to his partner, Ms Hawke, and members of her family, placing the Applicant at the ‘lower end of the scale’ for such offending.[52]
[52] R3, pages 180, 432.
53. The Applicant also has prior convictions for possession of cannabis in Western Australia and Queensland.[53] He received fines and a good behaviour bond for those offences.[54]
[53] R3, page 181; R2, G4; R3, page 127.
[54] R2, G4.
54. Material produced under summons from the Western Australia Department of Justice and submitted by the Respondent also indicates that the Applicant was placed on a 14-day confinement regime in Karnet Prison Farm, due to a positive indication and admission of the use of cannabis on 8 April 2021.[55] At the hearing the Applicant admitted to the incident and said he had used cannabis as he was stressed due to the current Tribunal proceedings.[56]
[55] R3, page 46–9.
[56] Transcript, page 24.
Fraud and dishonesty offending
55. On 22 September 2018, the Applicant was convicted of 20 counts of ‘gains benefit by fraud’, for which he received sentences ranging from a few months through to two years’ imprisonment. The Applicant was found not guilty of a further two charges of ‘gains benefit by fraud’. The jury was unable to reach a verdict on a further 28 counts of similar offences.[57] The total effective sentence for the offending was 5 years’ imprisonment.
[57] R2, G4, page 30.
56. The Fraud Offences were committed between 1 September 2009 and 29 September 2011 in Port Hedland.[58] The Tribunal notes that the Fraud Offences were committed before the Applicant was charged and convicted of the Methylamphetamine Offence.
[58] R2, G5, page 30.
57. The sentencing Judge, Prior DCJ, found the facts of the offending were as follows:[59]
[59] R2, G5, pages 30–2.
At the time your offending occurred, Dr Deshmukh [the victim] was working as a paediatrician at the hospitals in Port Hedland or later in Karratha. Dr Deshmukh first came to Australia from India in 1999 with his family. His second language is English.
You first came in contact with your victim by mere coincidence. Dr Deshmukh and his family were involved in a motor vehicle accident in November 2008 when they were travelling north to Port Hedland near Dalwallinu. You were travelling in the opposite direction towards Perth from Port Hedland.
You stopped to assist Dr Deshmukh and his family after they had been involved in the accident. You acted as a good Samaritan and helped Dr Deshmukh with removing his family from the damaged motor vehicle. You then arranged for Dr Deshmukh and his family and his damaged motor vehicle to be taken to the closest town, which was Dalwallinu.
You next met Dr Deshmukh on 28 August 2008(?) by chance when he was attending his daughter's birthday party at the McDonald's fast food outlet in South Hedland. At that location you introduced Dr Deshmukh to your partner, Margaret Hawke. He gave you his phone number. Dr Deshmukh was extremely grateful to you for the assistance you had given him back in November 2008 when his family was involved in the motor vehicle accident.
About a week after you saw Dr Deshmukh on 28 August 2000(?), you contacted him at his workplace and you asked him to meet you in a cafe in Port Hedland. A meeting occurred and you told Dr Deshmukh you were from a Kurdish family in Iraq and your wife and children had been killed in a roadside bomb. You then proceeded to tell him that you needed money urgently as your brother had been kidnapped by terrorists in Iraq.
You asked if Dr Deshmukh would pay money to you to avoid his(?) brother being killed. You said it was best to get the money out of Dr Deshmukh's bank account. You went with Dr Deshmukh to the Commonwealth Bank in South Hedland where he withdrew money, and then went with him to the Westpac Bank where the money he had withdrawn was deposited into your account.
The first amount of cash deposited was $11,500 on 1 September 2009. In just over a two-year period, Dr Deshmukh continued to withdraw, transfer or give you money in various amounts up until the last offence which you committed on 29 September 2011. None of that money has been recovered from you in relation to these offences.
During the time period Dr Deshmukh gave you money which he deposited in your bank accounts, you said to him the following things. Your brother had been killed in Iraq and as you had not got the ransom money to the kidnappers in time you needed further money to deal with your brother's dead body and his estate.
You needed to pay taxes, rates and fees in relation to land your family owned in Iraq which was part of a deceased estate. You could then sell it and pay Dr Deshmukh back. Such payments also included bribes to the Iraqi government. You said you also needed money for a lawyer or agent to assist you with these transactions.
You later told Dr Deshmukh that the lawyer or agent who you were providing the money to that you had received from Dr Deshmukh had stolen the money. You told him you needed further money to get your sister and her two sons out of Iraq.
58. His Honour Prior DCJ went on to note:[60]
You were therefore not transferring the money to Iraq as you told Dr Deshmukh, or putting it towards the purposes that you told him it would be used to be put towards in Iraq.
Corresponding with a number of the offences which you have been convicted are withdrawals from bank accounts in various casinos located throughout Australia. When you spoke to Detective Colangelo in September and October 2010, you told him that you were using the money that had been loaned to you by another person for gambling and that you had suffered significant losses from gambling.
I'm satisfied on the evidence that the bulk of the money you obtained from Dr Deshmukh by fraud was in fact used by you in gambling at various casinos within Australia. This is also consistent with the exhibit tendered at your trial which was an Austrac schedule which shows a number of transactions in 2009, 2010 and 2011 of you cashing in casino chips or purchasing casino chips at various casinos within Australia.
[60] R2, G5, page 32.
59. His Honour described the Applicant’s offending against the victim as ‘a scam’ and noted that the Fraud Offences were ‘relatively sophisticated’ and involved the provision of documents in Arabic that he understood would result in him receiving the return of his money.[61] The Fraud Offences also involved other persons claiming to be lawyers assisting with recovery of monies from Iraq. His Honour Prior DCJ was satisfied on the evidence that ‘there was no intention by [the Applicant] whatsoever to repay the money to Dr Deshmukh’.[62] This was confirmed by the fact that there were ‘a number of deposits’ made into the Applicant’s bank account during the period of time that the offences occurred, where ‘substantial amounts of money had come from Iraq’. None of this money was paid to Dr Deshmukh.
[61] R2, G5, page 32.
[62] R2, G5, page 33.
60. Dr Deshmukh was defrauded of the total sum of $340,555 with respect to the 20 offences.[63] The sentencing Judge further found that the Applicant’s offending behaviour was aggravated by the following factors:[64]
·the considerable period of time over which the offending occurred and the fact that the offending included 20 occasions where the victim advanced money to the Applicant on the basis of false representations he made, meaning that the offending was ‘repeated and sustained’;
·the substantial amount of money received from the victim;
·the lack of any real attempt by the Applicant to repay the money;
·the breach of trust involved in the offending; and
·the fact that the Applicant had treated the money he received from the victim as his own and the fact that it was not used for the stated purposes but rather for the Applicant’s own purposes (mostly gambling).
[63] R2, G5, page 36.
[64] R2, G5, page 36.
61.
While the sentencing Judge remarked that the Fraud Offences were the Applicant’s first dishonesty offences, the material produced on summons from South Australian Police, and submitted as evidence by the Respondent, indicated that the Applicant had prior convictions for six counts of ‘false or misleading statement (social security payment)’/‘false statement in claim for social security payment’ (False or Misleading Statement Offences) and three counts of ‘obtain instalment of payment not payable’ (Obtain Instalment Offences).[65] The Applicant was convicted of two of the False or Misleading Statement Offences on
9 September 2005. These convictions related to offences committed in August and December 2000,[66] with the Applicant being sentenced to one month’s imprisonment, with a 12 month good behaviour bond and a repatriation order for $809.27 plus costs.[67] The other four False or Misleading Statement Offences and the three Obtain Instalment Offences were committed in 1997 and 1998.[68] On 29 March 1999, the Applicant was sentenced to six weeks’ imprisonment for those offences with a 18 month good behaviour bond and a reparation order for the amount of $2,471.40 plus costs.
[65] R3, pages 142–4.
[66] R3, page 142.
[67] R3, page 142.
[68] R3, page 143.
62. The Applicant was cross-examined regarding monies received from other individuals, including Ms Buston, who gave the Applicant significant amounts of money over several instalments, including $280,000 on one occasion, with respect to which he signed a loan agreement with Ms Butson.[69] The Applicant was not convicted with respect to monies received from Ms Butson and charges were later discontinued.[70] However, he testified in cross-examination that he told Ms Butson the money was for property but ‘it was a lie, basically’ and the money had, in fact been gambled by the Applicant.[71] This is considered further below.
[69] R3, page 424.
[70] R3, page 188.
[71] Transcript, pages 34–5;
63. The False or Misleading Statement Offences and the Obtain Instalment Offences did not appear on the Applicant’s Nationally Coordinated Criminal History Check. The reasons for the omission are not clear, although the Tribunal notes that the Applicant’s name is spelt incorrectly on the South Australian Offender History Summary Report.[72] In any event, the Applicant did not deny the convictions. He said that he had spent a short time in prison in South Australia on remand for around one and a half weeks, and that he had been released on a two year good behaviour bond.[73] He testified that he was not aware he had been convinced of offences but thought he merely had a bond. He said that his lawyer (through an interpreter) told him that if he breached the bond he would go to jail.[74] He said that he did not believe he had defrauded Centrelink because at that time he could not read or write English and they filled in the forms for him at the office based on what he told them.[75]
[72] See R3, pages 142–4, where the South Australian Offender History Summary Report states the Applicant’s name as Isam Hassein Ahmad as opposed to Isam Hossein Ahmad.
[73] Transcript, pages 30–1.
[74] Transcript, page 32.
[75] Transcript, page 32.
64. The Tribunal finds that the Applicant has prior convictions for the False or Misleading Statement Offences and the Obtain Instalment Offences in 1999. While the Applicant could not recall the details of the offences and the material before the Tribunal does not contain details beyond the sentences and amounts to be repaid (just under $3000 in total), the Tribunal considers that on the material available these offences could fairly be categorised as dishonesty offences.
Other conduct
65. The Applicant has one conviction for ‘common assault’ in August 2007 for which he received a $250 fine. According to the Western Australia Police Statement of Material Facts relating to the common assault charge, the offence arose from an incident in May 2007 on a work site where the Applicant was working as a tiler and become involved in an argument with another sub-contractor whom he grabbed by the shirt while holding up a rubber mallet hammer and issuing threats.[76]
[76] R3, page 510.
66. The Applicant has also been convicted of the offence of driving without a licence.[77]
[77] R2, G4.
67. Material produced under summons from the Western Australia Police and submitted by the Respondent included a number of police records (incident reports) relating to reports of family violence involving the Applicant, Ms Hawke and members of her family. This included the issuing of a number of 72 hour police restraining orders in favour of Ms Hawke against the Applicant (on three occasions),[78] Ms Hawke’s mother against the Applicant (on one occasion)[79] and the Applicant against Ms Hawke (on one occasion).[80] In cross-examination the Applicant admitted to having disputes with Ms Hawke and her mother but denied any incidents of violence.[81] In her testimony, Ms Hawke accepted that there had been instances where she had contacted police because she was afraid of the Applicant and that she had been assaulted by the Applicant in the past.[82] However, she testified that she did not believe such incidents would occur again in the future. This is addressed further below with regard to the family violence primary consideration.
[78] R3, pages 362–3, 364–5 and 384.
[79] R3, pages 381–2.
[80] R3, page 367.
[81] Transcript, pages 29–30.
[82] Transcript, page 63.
DOES THE APPLICANT PASS THE CHARACTER TEST?
68. The Applicant has accepted that he does not pass the character test.[83]
[83] A1, para [28].
69. The Tribunal may revoke the Cancellation Decision if it is satisfied that the Applicant passes the character test.[84]
[84] Migration Act s 501CA(4)(b)(i).
70.
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[85]
[85] Migration Act s 501(7)(c).
71.
The Applicant was sentenced to an effective term of imprisonment of five years on
22 September 2018 for the Fraud Offences and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
72.
The Tribunal notes that the Fraud Offences are different offences than those which gave rise to the Previous Cancellation Decision. In any event, the Federal Court found in Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 (Derrington J, 25 May 20201) that the structure and operation of s 501(3A) is substantially different to the provisions considered by the High Court in Minister for Immigration and Border Protection and Makasa (2021) 386 ALR 200 (which concerned
s 501(2)), and the decision in that case does not apply to s 501(3A). His Honour determined that while the circumstances which enliven the Minister’s power to cancel a visa are spent once a decision based on those circumstances is revoked or set aside by the Tribunal:[86]
That is not to say that new matters, taken with some or all of those prior circumstances, cannot give rise to a new foundation for the exercise of power, but the Minister may not rely on precisely the same circumstances on the second occasion.
[86] At [45].
That was not the position in this case where the Cancellation Decision was based on a different set of convictions.
73. The Tribunal is not satisfied that the Applicant passes the character test.[87]
[87] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
74. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.
75. The Tribunal notes that the Previous Cancellation Decision was revoked. The issue of the impact of that decision was not raised in submissions other than by the Applicant to suggest that that decision was evidence that the Applicant did not present an unacceptable risk of harm to the community. The Tribunal notes this is not a case where the decision-maker is relying on identical facts to revisit an earlier revocation decision. The Previous Revocation Decision was made in the context of the information that was available to the decision maker at that time. The Tribunal infers that that would not have included information regarding the Fraud Convictions, which arose after the Previous Revocation Decision. In any event, the Tribunal’s role is to apply Direction No 90 taking into account the totality of the Applicant’s offending, according to the available evidence at the time of the decision.[88] Accordingly, the Tribunal has considered the totality of the Applicant’s offending and conduct to date and the information before the Tribunal regarding the circumstances of that offending.
[88] Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78 (Logan, Perry and beach JJ) 10 May 2021 per Logan J (Perry and Beach JJ concurring) at [10].
Protection of the Australian community primary consideration
76. Paragraph 8.1(1) of Direction No 90 provides that:[89]
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
[89] See also Direction No 90 para 8(1).
77. Paragraph 8.1(2) of Direction No 90 then provides:
(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.
Nature and seriousness of the conduct
78. Paragraph 8.1.1(1) of Direction No 90 provides:[90]
[90] See also Direction No 90 para 8.1(2)(a).
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
79. The Applicant’s history of offending is detailed at paragraph [50] above and in the Annexure below. As noted above, the Respondent submitted incident reports obtained under summons from Western Australia Police, relating to incidents which the Respondent submitted was conduct constituting family violence. The Applicant and Ms Hawke were cross-examined about these incidents. The Respondent also cross examined the Applicant about other instances where the Applicant ‘borrowed’ significant sums of money from individuals, which has not been repaid and which the Respondent submitted was not used for the purposes for which it was purportedly borrowed. This conduct is considered further below.
80. The Applicant accepted that the nature and seriousness of his offending weighed against revocation of the Cancellation Decision, but submitted through his representative that less weight should be given on the basis of the nature of the offending and the low risk of reoffending. The Applicant contended that:[91]
·the circumstances of his offending were such that they should be viewed as being on the lower end of the scale;
·in relation to the Methylamphetamine Offence, he was found to have supplied his family and not to have been engaged in a commercial activity in this regard;
·he has not been convicted of any violent offences other than the common assault which should be viewed at the ‘lowest end of the scale’ of such types of offences;
·he received well below the maximum penalty for his offences and that his last fraud offence was in September 2011;
·he ‘was not found guilty of any criminal conduct in relation to the money received from Dr Deshmukh beyond September 2011’. The Applicant contended that the Tribunal should distinguish between monies criminally obtained from Dr Deshmukh between September 2009 and September 2011 and money ‘legitimately received’ between September 2011 and March 2014; and
·he was unaware of his convictions when marking his incoming passenger cards.
[91] A1, paras [48]–[66].
81. The Respondent contended that the Applicant’s offending should be viewed as very serious, having regard to the relevant factors in Direction No 90.[92] The Respondent submitted that the Applicant’s offending was serious in light of:[93]
·the offence of ‘common assault’, which the Respondent also submits is a violent crime that is viewed very seriously by the Australian Government and the Australian community;[94]
·the fact that he has been sentenced to more than 20 terms of imprisonment for his offending and has been sentenced to more than 20 years in prison, having regard to the concurrent sentences. This reflects the seriousness of the offending, given that the imposition of a term of imprisonment is the last resort in the sentencing hierarchy;[95]
·the fact that the Applicant has committed numerous drug offences since 2007 with a trend of increasing seriousness; and
·various incoming passenger cards completed by the Applicant did not disclose his criminal offending.
[92] R1, para [28]
[93] R1, para [28].
[94] Direction No 90 para 8.1.1(1)(a)(i).
[95] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]
82. In sentencing the Applicant with respect to the Methylamphetamine Offence, the sentencing Judge remarked on the seriousness of the offending as follows:[96]
And I need to send a message to the wider community that if they engage in possession of drugs with an intent, whether it be to sell or to supply, then severe penalties are warranted. And the message, hopefully, from a penalty that is consistent with other penalties for this kind of offending will send a message to the community that they shouldn't do this kind of thing.
And that's because trafficking in amphetamines is regarded as being in the upper range of seriousness in the scale of drug trafficking offences. I accept that I haven't made a finding that you were actually selling, but you were supplying and supplying to other people is also very serious.
[96] R3, page 182.
His Honour Goetze DCJ also referred to the amount and purity of the methylamphetamine and the fact that the Applicant was distributing the drug to members of his family.[97]
[97] R3, page 179.
83. With respect to the Fraud Offences, Prior DCJ noted in sentencing:[98]
Offences pursuant to section 409 of the Criminal Code cover a wide variety of conduct of differing levels of seriousness. Often offences of this type involving breaches of trust and continuing offences of fraud can result in the offender receiving substantial amounts of money or property from the victims. Generally, a term of immediate imprisonment is imposed for offences of fraud where the total amount of money obtained is substantial and involves multiple offences.
This is a serious example of fraud given its continuing nature and the amount of money that was obtained by you from Dr Deshmukh. None of the money obtained from Dr Deshmukh has been repaid by you. Your fraudulent behaviour towards Dr Deshmukh was deliberate, deceptive and systematic. You continually preyed on the trust Dr Deshmukh had in you over a period of approximately two years. …
A sentence of imprisonment should reflect the principles of general and specific deterrence. The protection of the community requires that people who prey on persons who are in a vulnerable position should be punished.
[98] R2, pages 37–38.
84. In the Tribunal’s view, the comments of the sentencing Judges reflect both the seriousness with which the courts viewed the Applicant’s offending and the need to protect the community from such offending through penalties taking account of personal and general deterrence considerations.
85. The Tribunal is obligated by Direction No 90 to take into account whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[99] In the Tribunal’s view, none of the Applicant’s offending falls squarely within these categories.
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