Mahmood and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3953

Mahmood and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3953 (28 November 2023)

Division:GENERAL DIVISION

File Number:          2023/6667

Re:Mr Tayyeb Mahmood

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date:28 November 2023

Place:Melbourne

Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision. In substitution the Tribunal finds there is another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of Mr Mahmood’s visa.

..........................[sgd]..............................................

Ms A E Burke AO, Member

Catchwords

MIGRATION – applicant is a citizen of Pakistan – applicant held Class WA Subclass 010 Bridging visa – visa mandatorily cancelled under Migration Act – substantial criminal record – delegate of Minister decided not to revoke mandatory cancellation – serious offence - dangerous driving causing death and dangerous driving causing serious injury -consideration of the ministerial direction 99 – primary considerations – protection of the Australian community – nature and seriousness of the conduct – conduct found to be very serious – risk to the Australian community – best interests of minor children in Australia – special consideration – expectations of the Australian community – extent of impediments if applicant removed to Pakistan – links to the Australian community – negligible risk of reoffending found – decision under review set aside and new decision substituted there is another reason to revoke the mandatory cancellation of the visa

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Dharma and Minister for Home Affairs [2018] AATA 2757
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Taufahema v Minister for Immigration and Citizenship [2010] FCA 328

Secondary Materials

Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)

REASONS FOR DECISION

Ms A E Burke AO, Member

28 November 2023

1. On 24 March 2022 a delegate of the Minister, administering the Migration Act 1958 (the Minister), cancelled Mr Tayyeb Mahmood’s Bridging Visa A Class WA-010 (BVA) under section 501(3A) of the Migration Act 1958 (Cth) (the Act). On 11 April 2022 Mr Mahmood’s legal representatives provided a response to the decision requesting revocation of the decision to cancel his Visa for other reasons.

2. On 4 September 2023 a delegate of the Minister made a decision not to revoke the cancellation of Mr Mahmood’s BVA. The delegate found that Mr MAHMOOD has made representations, in accordance with the invitation given to him under s501CA(3), about revocation of the cancellation decision. I am not satisfied that Mr MAHMOOD passes the character test (as defined by s501). Nor am I satisfied that there is another reason why the cancellation decision should be revoked. Accordingly, the power in s501CA(4) is not enlivened and Mr MAHMOOD’s Class WA Subclass 010 Bridging A visa remains cancelled (Exhibit R1, 15).

3. In particular, the delegate found that Mr Mahmood’s offending was serious taking the view that offences such as Drive in manner dangerous causing death can be viewed seriously. Traffic accidents result [sic] in deaths and long-term injuries are serious as an injury can have a profound impact on a person’s life and can also affect the lives of that person’s family members. The physical and psychological impacts can be prolonged or even permanent (Exhibit R1, 18).

4. On 10 September 2023 Mr Mahmood applied to the Administrative Appeals Tribunal (the Tribunal) under section 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his Visa. At the time, Mr Mahmood was being held at the Melbourne Immigration Transit Accommodation (MITA).

5. At the hearing of his application on 14 and 15 November 2023 Mr Mahmood was represented by solicitor advocate Mr Tanguy Mwilambwe of Taylor Rose. Ms Monique Munro, solicitor advocate of Clayton Utz, appeared for the Minister. The Tribunal and the parties were also assisted by an interpreter in the Punjabi language. The Minister lodged a set of paginated G-Documents and a VicRoads record of Mr Mahmood’s complete demerit point extract. Mr Mahmood and his wife Ms Ashraf provided written statements to support oral evidence. Ms. Clare Fercher-Barrett, Consultant Psychologist, produced a psychological report on behalf of Mr Mahmood and provided expert evidence at the hearing. A full list of the documents tendered into evidence is appended to this decision.

   BACKGROUND

6. The Parties provided the following agreed statement of facts at the commencement of the hearing:

   (i)Mr Mahmood, the Applicant, is a 35-year-old citizen of Pakistan.

   (ii)On 9 March 2012, the Applicant arrived in Australia as a dependent on his spouse's student visa with his first wife. This marriage dissolved, and the Applicant returned to Pakistan.

   (iii)The Applicant returned to Australia in September 2012.

   (iv)The Applicant commenced employment as a taxi driver in December 2012.

   (v)On 19 October 2013, the Applicant disobeyed traffic control signals (3 demerit points).

   (vi)On 17 December 2013, the Applicant used a handheld telephone while driving (4 demerit points).

   (vii)In 2014, the Applicant married his current wife (Javeria Ashraf) in Pakistan, before returning to Australia.

   (viii)On 6 July 2014, the Applicant failed to give way, stop, or remain stopped (3 demerit points).

   (ix)On 4 September 2014, the Applicant failed to obey a traffic lane arrow (2 demerit points).

   (x)From February 2015 to May 2015, the Applicant’s license was suspended for demerit points.

   (xi)On 30 October 2015, the Applicant’s wife gave birth to their first child.

   (xii)On 18 November 2016, the Applicant gained 3 demerit points for careless driving.

   (xiii)On 18 March 2017, the Applicant’s wife gave birth to their second child and the Applicant gained 5 demerit points for careless driving (3 demerit points) and turning improperly (2 demerit points).

   (xiv)From April 2018-April 2019, the Applicant was employed as a chef.

   (xv)On 11 September 2018, the Applicant picked up two passengers in his taxi and performed an illegal U-turn by crossing an unbroken line. The truck approaching was unable to stop, leading to a collision that caused the death of one passenger and serious injury to the other.

   (xvi)On 16 September 2019, the Applicant was granted a BVA.

   (xvii)Between 2019 and November 2021, the Applicant was self-employed as a painter.

   (xviii)On 23 November 2021, the Applicant was convicted of driving in manner dangerous causing death and driving in manner dangerous causing serious injury. The Applicant was sentenced to 2 years and 9 months total imprisonment for these convictions, with a non-parole period of 1 year and 6 months. The Applicant was disqualified from obtaining a licence or permit for 1 year and 6 months, commencing 23 November 2021.

   (xix)On 24 March 2022, the Applicant was given notice of the cancellation of his visa under section 501(3A) of the Act.

   (xx)On 5 September 2023, the Applicant was given notice of the decision to not revoke the visa cancellation decision.

   (xxi)On 10 September 2023, an application was made for review of the decision not to revoke the visa cancellation decision.

   (xxii)As a citizen of Pakistan, the Applicant would have the same access to social, medical and economic support as other citizens.

   (xxiii)There is no apparent impediment to him finding adequate employment in Pakistan (notwithstanding his criminal record), noting that the Applicant has engaged in employment that demonstrates culturally transferrable skills in Australia as a chef and as a painter.

   (xxiv)There are no language or cultural barriers for the Applicant to overcome in Pakistan.

   ISSUES

7. In his Statement of Facts, Issues and Contentions filed on 20 October 2023 Mr Mahmood conceded that he did not pass the character test for the purposes of section 501CA(4)(b)(i) of the Act and he confirmed this at the hearing. The Tribunal is satisfied that Mr Mahmood does not satisfy the character test under section 501 on account of his substantial criminal record as defined under section 501(7) being sentenced to a term of imprisonment of 12 months or more.

8. Accordingly, the issue for consideration by the Tribunal is whether the cancellation of Mr Mahmood’s visa should be revoked, taking into account the relevant considerations in Ministerial Direction No 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.

   LEGISLATIVE FRAMEWORK

9. The Tribunal operates under the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25 of the AAT Act allows the Tribunal to conduct review of decisions made under other pieces of Commonwealth legislation, including the original decision made concerning Mr Mahmood. Under section 43(1) of the AAT Act, when making a decision, the Tribunal may exercise all of the powers of the original decision-maker. The Tribunal must review the merits of the matter under review and come to the correct or preferable decision.

10. Visa cancellation on character grounds is established in section 501 of the Act. Under section 501(3A)(a)(i) the Minister must cancel a visa if satisfied a person has a substantial criminal record. This requirement is provided for in section 501(6)(a), and a substantial criminal record comprised of a sentence to a term of imprisonment of 12 months or more is provided for in section 501(7)(c).

11. The power to revoke (or reverse) this mandatory cancellation is found in section 501CA of the Act. The mandatory cancellation may be revoked if a person either passes the character test, or the Minister is satisfied that there is another reason why the original decision should be revoked (section 501CA(4)(b)).

12. A Direction has been made under section 499 of the Act that provides guidance a decision-maker must take into account when considering revocation under section 501CA. This document is known as Direction No. 99, issued on 23 January 2023, which came into effect on 3 March 2023 (the Direction). Part 2 of the Direction sets out ‘primary’ and ‘other’ considerations that must be considered, and each one is accompanied by specific factors that inform the making of a decision.

13. Part 1 of the Direction includes a Preamble, that identifies Objectives and Principles. The Principles (5.2) provide the framework for decision making and are 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 engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)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 8.55(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 measurable risk of causing physical harm to the Australian community.

    EVIDENCE

    Mr Mahmood’s Offending

14. The following table has been derived from a national criminal history check relating to Mr Mahmood produced by the Australian Criminal Intelligence Commission on 21 March 2022:

COURT DATE	OFFENCE	COURT RESULT
23 Nov 2021	DRIVE IN MANNER DANGEROUS CAUSING DEATH	28 MONTHS IMPRISONMENT. LICENCE CANCELLED AND DISQUALIFIED FOR 18 MONTHS
23 Nov 2021	DRIVE MANNER DANGEROUS CAUSE SERIOUS INJ	12 MONTHS IMPRISONMENT. 7 MONTHS OF SENTENCE CONCURRENT. LICENCE CANCELLED AND DISQUALIFIED FOR 18 MONTHS.

1. The following table has been derived from Mr Mahmood’s Complete Demerit Point Extract from the Department of Transport and Planning, previously VicRoads, dated 17 October 2023:

   Mr Mahmood held a full driver licence from 26/3/2013 to 23/11/2021.

   Mr Mahmood's licence was suspended for demerit points from 3/2/2015 to 2/5/2015

   Mr Mahmood's licence was cancelled as part of the court result from 23/11/2021, than [sic] disqualified as a result of court result from 23/11/2021 to 23/5/2023

Offence Date	Points	Nature of Offence
18-03-2017	03	Careless Driving
18-03-2017	02	Turn Improperly
18-11-2016	03	Careless Driving
17-11-2014	03	Disobey Traffic Sign
04-09-2014	02	Fail To Obey Traffic Lane Arrow
06-07-2014	03	Fail To Give Way, Stop Or Remain Stopped
17-12-2013	04	Use Hand Held Telephone When Driving
19-10-2013	03	Disobey Traffic Control Signal

1. In her sentencing remarks on 23 November 2021 her Honour Judge Todd described Mr Mahmood’s offending:

   1.    On 11 September 2018 Mr and Mrs Devisser, aged 85 and 80 years old respectively, called a taxi to take them to the shops to buy a birthday present for Mrs Devisser. After picking them up just before 11 am, the taxi driver attempted to do a U-turn on the street outside their house, this required him to cross an unbroken line down the middle of the road. While he contemplated the U-turn, a truck was driving towards him in his direction of travel. The taxi driver saw it but failed to properly calculate its speed and distance from him. He started the U- turn. The truck was unable to avoid the taxi. Mrs Devisser died from her injuries in the early afternoon. Mr Devisser suffered a range of injuries including spinal fractures and a minor traumatic brain injury. The truck driver and taxi driver were essentially unharmed.

   …

   29.  It is clear that many of the indicia present in some forms of dangerous driving were absent in your case: you were not speeding, intoxicated, driving aggressively or competitively nor avoiding police pursuit nor were you sleep deprived. You were not using your mobile phone.

   …

   34.  It was accepted by the Prosecution that you are a man with a successful and responsible family life and have a good work history…

   …

   36.  In Pakistan you completed 12 years of school education and then commenced a Bachelor of Arts in Gujrat. You left tertiary study to join the Punjabi police force; you served for two years and became disaffected by the breadth of corruption you saw there. You came to Australia in 2012 on a combined student visa/spousal visa with your first wife. That marriage dissolved and you later met your current wife Javeria, back in your hometown in Pakistan. You married Javeria in 2014, came to Australia and the relationship has been immensely successful. You are now parents of two children…

   37.  Your time in Australia has been characterised by consistent hard work and study. Evidence of a wide range of educational and vocational achievements were tendered on your plea. You started working in a car wash, got your taxi driver's licence and volunteered at the Bonfire Café Pakistani restaurant in Springvale. You have gone on to complete courses in hospitality management, English, and business.

   PRIMARY CONSIDERATIONS

   Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

2. The Direction requires the Tribunal to 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 (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.

3. This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).

   The nature and seriousness of the conduct (paragraph 8.1.1)

4. Mr Mahmood did not contest he had committed a serious crime which resulted in the death of an individual and serious injury of another.

5. In her sentencing remarks on 23 November 2021 her Honour noted:

   Record of Interview

   20.  On 18 September 2018 you attended the Dandenong Police Station by arrangement with police. You took part in an interview and admitted to attempting the U-Turn, in circumstances when it was not permissible to do so. When answering questions, you said:

   "Yeah, I think it's - it is my fault, the accident … yeah, I know."

   …

   29.  It is clear that many of the indicia present in some forms of dangerous driving were absent in your case: you were not speeding, intoxicated, driving aggressively or competitively nor avoiding police pursuit nor were you sleep deprived. You were not using your mobile phone.

   …

   32.  Your driving caused both fatal and serious injuries. You put other road users, such as Mr Smith the truck driver, and other passing cars on a relatively busy thoroughfare at risk. You put yourself at risk. Considering all these features of your driving, I must conclude that this is not offending at the lowest possible end of the spectrum, nor is it though, by reference to the matters not present that I have already identified, in the higher ranges of dangerous driving.

1. Ms Ashraf’s Statutory Declaration dated 20 October 2023 and prepared for the Tribunal states:

   6.    My partner will be the first to agree that his offending was serious and caused significant turmoil for those involved and their friends and family. My partner has never tried to make light of his offences or excuse his behaviour. My partner is extremely remorseful and regretful for his actions.

2. The Tribunal notes that Mr Mahmood has at all times conceded his offences were serious in nature and did not dispute the reasons articulated by the delegate (Exhibit R1, 18):

   In considering the nature and seriousness of Mr MAHMOOD's criminal offending, I take the view that offences such as Drive in manner dangerous causing death can be viewed seriously. Traffic accidents result in deaths and long-term injuries are serious as an injury can have a profound impact on a person's life and can also affect the lives of that person's family members. The physical and psychological impacts can be prolonged or even permanent.

3. The Tribunal finds that Mr Mahmood’s offending is undoubtedly serious and his actions have resulted in the death of one individual and the serious injury of another.

4. Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes.

5. In her sentencing remarks on 23 November 2021 her Honour noted:

   57.  I must impose a sentence that punishes you for what you did and that denounces your offending, but general deterrence is the principal sentencing consideration in dangerous driving cases. I must give that principle considerable weight even where matters in mitigation, such as good character, pull strongly in the other direction, as they do here. The authorities are clear: a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment. I add that I regard the role for specific deterrence to be of minimal importance, or even absent in this case.

   Totality, Concurrency and Cumulation

   58.  I have had regard to the principle of totality in arriving at your sentence. Your barrister urged me to impose two sentences that are wholly concurrent, however I must recognise the two separate victims with some degree of cumulation.

   Disposition

   61.  On Charge 1: dangerous driving causing death, you are convicted and sentenced to two years' and four months' imprisonment.

   62.  On Charge 2: dangerous driving causing serious injury, you are convicted and sentenced to 12 months' imprisonment.

   63.  Five months of the sentence on charge 2 will be served cumulatively on the sentence on charge one, making a total effective sentence of 2 years' and nine months.

   64.  I direct that you are to serve a minimum of 18 months before becoming eligible for parole.

6. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness.

7. In her sentencing remarks on 23 November 2021 her Honour noted:

   Prior criminal history

   22.  You come before the court as a 33-year-old man with no prior convictions. On your plea, your counsel tendered evidence from your country of birth, Pakistan, which establishes that you have no prior criminal history in that country either. It was put on your plea that you have, until the date of your offending, lived a blameless and unimpeachable life. In reply to this submission, the prosecution tendered a ‘demerit point extract’ and a ‘PINS’ record which show that between 2013 and 2017 you accrued 23 demerit points in the course of the commission of eight driving offences, committed in the course of your work as a taxi driver. In her submissions, the prosecutor said that ordinarily offending at this level is not alleged, but it is put before the Court in this case as some context for the submission about your blameless history. I make it clear that I do not treat these matters as prior convictions, and I find they are of very limited relevance. The prosecutor submitted, and I accept, that the existence of those minor driving offences might qualify, to some very limited extent, how I understand the submission that you come before the court with an ‘unblemished history.’ But it is clear that you are, and will be sentenced as, a person of prior good character.

   …

   41.  You entered a plea of guilty to these charges and by doing so saved the community, but most importantly, the witnesses, from the costs, both human and financial, of conducting a trial. At any time this acceptance of responsibility commands me to impose a much lower sentence than if you had been found guilty after trial…

   42.  Further, you went through the sentence indication process, when it was indicated that a term of imprisonment to be served immediately would be imposed, you instructed your lawyers that you would plead guilty, nevertheless. Moreover, in those circumstances, that is, knowing that you would be taken into custody very soon…

8. Ms. Clare Fercher-Barrett, Consultant Psychologist, in her report of 21 May 2023 opined:

   5. MR MAHMOOD'S ATTITUDES TOWARDS REHABILITATION

   5.1 Mr Mahmood advised that during his custodial episode he was focused on engaging with available programs and studies. He described this as having been helpful for his emotional wellbeing, and for his future employment prospects. He said it has been more difficult to manage his stress in immigration detention as there are no programs or study opportunities.

   5.2 Mr Mahmood impressed as sincere in his expressions of remorse and sorrow for the offending. At no time did he attempt to minimise or blame others. He did not express sentiments or attitudes that would suggest he condones dangerous driving behaviours or other reckless actions. He accepts full responsibility for his behaviour and he acknowledged the irreparable harm his actions have caused.

9. Mr Mahmood’s Statutory Declaration dated 25 October 2023 and prepared for the Tribunal; states:

   13.  With the exception of those offences, I have had no criminal history. Since my offences in 2018, I have avoided breaking any law and I endeavour to be a law-abiding citizen.

   14.  I am incredibly remorseful and ashamed of my actions which resulted in the death/injury of others. I am aware of the impact my mistake had on those involved in the accident as well as their families and loved ones.

   15.  I am also conscious of and extremely remorseful and regretful for the affect my actions have had on my partner and children.

   16.  My family is aware of my offending and have been assisting me to date.

   17.  I have no intention to re-offend and I believe I can continue to be a law abiding and positive contributor in the Australian community. I have the determination to ensure that I do not re­ offend.

   18.  During my custodial episode I was involved in numerous programs and studies to assist in my personal deterrence and rehabilitation. These steps were extremely helpful for my emotional wellbeing and for my future employment prospects.

   19.  Further, I have taken steps to personally deter from any future offences of a similar nature. The most serious form of personal deterrence I have taken is my intention to never drive a commercial vehicle again. I have not driven commercially since the offences occurred and I do not intend to do so in the future.

   20.  I pled guilty to the offences and have always cooperated with authorities with regards to my offences and my visa issues.

   21.  My family have been a positive influence on me and will continue to be should we all be permitted to remain in Australia.

   Submissions

10. Mr Mahmood’s counsel submitted:

    ·Mr Mahmood accepts he has a lengthy traffic history and has taken the steps to address these issues.

    ·Mr Mahmood accepts that he has been convicted of criminal offences as evidence of his guilty plea at the earliest convenience, his full cooperation with police, inclusive of providing evidence in relation to his criminal offending particularly when he was not a compellable witness, was indicative of his willingness to assist with the administration of justice. Importantly, this sufficiently highlights that Mr Mahmood is remorseful and insightful of the wrongfulness of his conduct that constituted his offending.

    ·Ms. Fercher-Barrett's report of 21 May 2023 clearly articulates that Mr Mahmood is remorseful, has insight into his offending and has strong protective factors to ensure his risk of reoffending is extremely low.

    ·Mr Mahmood accepts that the nature of harm if he were to reoffend is very serious and likely to result in significant psychological, financial, and physical harm (including death) to members of the Australian community. However, the Tribunal should place weight on the fact Mr Mahmood did not incur any traffic infringements in the three years he was in the community after the accident awaiting trial.

    ·The Tribunal’s consideration of the nature of the harm if Mr Mahmood engages in further criminal or other serious conduct was not independent of the consideration of the likelihood of reoffending. The nature of harm must be appropriately balanced with the consideration of the likelihood of reoffending and the evidence indicated Mr Mahmood was at a very low risk of reoffending.

11. The Respondent submitted:

    ·Should Mr Mahmood continue to offend in the manner in which he has to date, the harm that would be caused to the Australian community, including physical and psychological harm, would be devastating.

    ·The Tribunal is entitled to have regard to the damage already caused by Mr Mahmood’s offending in assessing what future harm may be occasioned by the repetition of that conduct - including property damage, serious personal injury and death.

    ·There can be no minimisation of the degree of harm that may be visited upon the community if Mr Mahmood were to reoffend as he has done previously; the nature of the harm posed, and the nature of the harm already inflicted, is so serious that any material risk that Mr Mahmood might reoffend in a manner comparable to his previous offending should be considered to be one which is unacceptable.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

12. This part of the primary consideration requires the Tribunal to have regard to the Government’s view that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ (8.1.2(1)).

13. In her sentencing remarks on 23 November 2021 her Honour noted:

    49.  I accept that you feel profound and genuine remorse for what you did, and that the grief and self-blame you experience have haunted you daily and will be there for some time to come. In some cases, the forgiveness of victims allows a court to make certain findings about rehabilitation. However, I expect the forgiveness of the Devisser family is probably not to be applied in this way in your case given there was no past or future relationship between you. I expect that most of your suffering is now self-imposed. However, I do find that you have very good prospects for rehabilitation, excellent really, and are most unlikely to come before a court again.

    …

    56.  …Moreover, the fact that you have been in the community for three years working, studying, and raising your family is demonstrative of your excellent prospects for, and achievement of, rehabilitation.

14. Ms Fercher-Barrett in her report of 21 May 2023 opined:

    6. MR MAHMOOD’S LIKELIHOOD OF REOFFENDING

    6.1 The PCL-R was applied by the writer to assess for potential elevated psychopathic traits and the risk of engaging in general antisocial conduct. The PCL-R is a 20-item rating scale informed by semi-structured interview and a thorough review of collateral information. Whilst all psychometric instruments have limitations, the test is accepted as a reliable and validated rating scale for the assessment of psychopathy in forensic populations. It identifies behaviours and personality traits associated with the clinical conception of psychopathy. Although most of the research thus far has been based on North American samples of offenders and forensic psychiatric patients, the PCL-R is considered to demonstrate considerable cross-cultural generalisability.

    6.2 The four main constructs reflected on the PCL-R include interpersonal, affective, lifestyle and antisocial. These facets are condensed into two primary factors. Factor 1 refers to interpersonal relationships and affective conditions such as self-centeredness, absence of remorse and insensitivity towards others (personality traits & character). Factor 2 reflects antisocial deviations of conduct relating to criminality, social deviance and criminal versatility and recidivism (traits of instability & impulsiveness).

    6.3 A cut-off score of 30 or higher on the PCL-R is typically used to classify individuals as psychopaths but the cut-off score across cultures varies between 23 and 33. A score of 20 or above is reflective of entrenched antisocial values.

    6.4 Mr Mahmood obtained a total raw score of 3 which equates to a percentile rank (PR) of 0.7. Qualitatively, a PCL-R score of 3 can be considered a ‘very low’ score. In other words, Mr Mahmood does not present with elevated psychopathic traits or entrenched antisocial values. Such a low score is indicative of a very low risk for future offending.

    6.5 Clinical assessment including interview and the application of psychometric measures and a review of available collateral information indicates that Mr Mahmood’s offending was a result of poor judgement rather than reflective of antisocial tendencies. He has no other offending history, no history of alcohol or substance abuse, and comes from a prosocial background. He impresses as a hardworking person who is committed to providing a good life for his family. The clinical, psychometric, and historical information indicates that he presents a very low risk for recidivism or for engaging in general antisocial behaviours.

    ….

    10.7 A review of the AUDIT, DUDIT, self-report, clinical impressions, and collateral information indicates that Mr Mahmood does not suffer from any alcohol or substance use problems. He has no known history of alcohol or other drug use.

15. Mr Mahmood’s Statutory Declaration dated 25 October 2023 states:

    36.  The delegate agreed that there is a low likelihood of reoffending, however I do not believe that the delegate has recognised how incredibly low that risk is when considering Ms Fercher­Barrett's Psychologist Report and my other supporting materials.

    37.  The delegate also recognised there were positive sentiments in my rehabilitation, however, the delegate found that there was no evidence to support my rehabilitative efforts have specifically targeted my offending behaviour. As such, the delegate remained concerned a similar relapse in judgment may occur, albeit a low likelihood of such. I completed many courses to help my rehabilitative process, including a positive behaviour course which I believe assisted with my quick decision making abilities to assist in me making smarter and safer quick decisions. I do not agree with the delegate in this regard as I am confident my rehabilitative efforts did target my offending behaviour and essentially eliminate my likelihood of reoffending. I am confident by rehabilitation has contributed to my very low risk of recidivism.

    38.  My risk of reoffending is reduced even more so by the fact that I do not intend on working in the taxi industry as a driver in the future. I am content and happy with my continuation as being a house painter. As a house painter, my risk of causing similar accidents whilst driving is significantly diminished.

    39.       Further, I have decided myself that as a result of my previous offending, I will never drive commercially again. I have not driven a commercial vehicle since the offences occurred. I do not intend to drive commercial vehicles, including taxis, in the future. As such, I believe my risk of reoffending is almost non-existent.

    40.  My decision to never drive commercially again is a rehabilitative measure and form of personal deterrence which I have decided on my own volition.

    Submissions

16. Mr Mahmood’s counsel submitted:

    ·Mr Mahmood has to date demonstrated extreme remorse and shame following his offences, referencing to the sentencing remarks and Ms Fercher-Barrett's report.

    ·There was an incredibly low likelihood of Mr Mahmood reoffending, relying on the expert evidence of Ms Fercher-Barrett's and other supporting materials.

    ·There were positive sentiments in Mr Mahmood’s rehabilitation, as he had availed himself of every course available to him whilst in prison and would willing do more but no such services are available to him in detention. He had completed many courses whilst in prison to help his rehabilitative process, including one aimed at positive problem solving.

    ·Mr Mahmood’s rehabilitative efforts and completion of certain programs and courses have directly targeted his offending behaviour and reduce even further the likelihood of reoffending. Mr Mahmood is confident his rehabilitative course work, specifically his program focused on positive problem solving, has contributed to his very low risk of recidivism.

    ·Mr Mahmood has decided that, as a direct result of his previous offending, he will never drive commercially again. Mr Mahmood has not driven a commercial vehicle since the offences occurred and he does not intend to drive commercial vehicles, including taxis, in the future. As such, his risk of reoffending is almost non-existent.

    ·Mr Mahmood’s decision to never drive commercially again is a rehabilitative measure and form of personal deterrence which he has decided on his own volition. This clearly demonstrates his remorse and regret for his offending and his desire to never repeat such actions in the future as he is aware of the repercussions it has on those involved and their loved ones.

    ·Mr Mahmood has many skills and has expressed his desire to continue to work as a house painter or return to his original dream of working as a chef. As a house painter, the Applicant's risk of causing similar accidents whilst driving is significantly diminished.

    ·Whilst it is not disputed that Mr Mahmood’s offending was serious, it is submitted that there is such a low likelihood that he may reoffend that there is no threat to the Australian community which warrants protection.

    ·That Mr Mahmood’s prior offending (including traffic offending) was the best indicator of his future conduct, and the Tribunal should place considerable weight on the fact he had incurred no traffic violations in the three years after the accident whilst awaiting trial.

    ·That in that time Mr Mahmood had ceased driving commercially but was still driving, as his licence had not been disqualified or suspended during this period.

    ·That Mr Mahmood’s evidence had been he had driven to Geelong, Bendigo and other long distances in this three year period to undertaking his work as a house painter and had incurred no infringement of any kind.

    ·The Tribunal should also note that her Honour in her sentencing remarks had indicated she considered Mr Mahmood’s previous driving offences were in the low range and importantly he had never been fined for speeding or driving dangerously.

    ·Ms Fercher-Barrett's evidence to the Tribunal had been she had assessed Mr Mahmood as a very low risk of reoffending as he had no prior offending history, had committed only one criminal offence and when applying clinical assessment and historical information he presented as very low risk of reoffending. Additionally, Ms Fercher-Barrett's evidence had been there was no offence-specific rehabilitation for Mr Mahmood’s criminal offence.

    ·Ms Fercher-Barrett's evidence to the Tribunal had been based upon a full knowledge of Mr Mahmood’s driving history and her opinion had not changed that: he was a very low risk of reoffending as he had no driving issues within three years of being on bail; he was hardworking; pro-social; had plans to return to painting; was motivated to support his young children and wife; committed to his Muslim faith; and had no attributes that would indicate he may be at risk of offending in any way – he did not drink, take drugs, and had no anger issues or history of violence.

1. Mr Mahmood’s counsel contended that little to no weight ought to be applied to Primary Consideration 1 as to whether Mr Mahmood’s visa cancellation should be revoked.

2. The Respondent submitted:

   ·The Minister acknowledges that the Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs [2018] AATA 2757, the degree of risk that may be acceptable is "inversely related" to both the likelihood of reoffending and the apprehended significance of the harm that may be caused by such further offending. In this context, paragraph 8.1.2(1) of the Direction refers to the notion of an "unacceptable risk"; that is, a risk that the community should not be required to tolerate regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (‘Tanielu’), Mortimer J (as her Honour then was) drew upon authorities related to other protective schemes to explain that, to determine an "unacceptable risk", a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.

   ·Mr Mahmood has repeatedly shown indifference to the Australian road rules and on this occasion of his criminal offending his disregard for the road rules and other road users ended in tragedy. There was the real possibility of harm being occasioned to innocent road users on each prior occasion referenced in Mr Mahmood’s traffic offending.

   ·Despite being issued repeated fines, demerit points, and a suspension, Mr Mahmood continued to drive in a manner that put the Australian community at a material risk of harm.

   ·Mr Mahmood’s prior offending (including traffic offending) is the best indicator of his future conduct.

   ·In determining risk, the Tribunal should place negligible weight on Mr Mahmood’s submission that poor decision making and judgment at the time of the accident is “the sole reason for his offending”, where the sentencing judge after considering that submission concluded that “this is not a case of momentary intention at its purest form”. The sentencing judge also remarked that there was some degree of premeditation in the performance of the illegal U-turn.

   ·The Tribunal ought to be especially concerned about Mr Mahmood’s assertion that the offences were entirely the result of poor judgement, showing a lack of insight into his offending conduct, when considering his risk of reoffending, particularly given Mr Mahmood‘s appalling traffic offending history which commenced shortly after he arrived in Australia.

   ·Mr Mahmood‘s claim that he "will never drive commercially again" is further reflective of his lack of insight into his offending, as the risk of reoffending extends to driving generally and not just commercially. In this context, Mr Mahmood has offered no explanation as to how he intends to travel to work in his employment as a painter should the cancellation decision be revoked. It is commonly known that painters require motor vehicle travel to transport their tools such as cans of paint, brushes and ladders.

   ·The Tribunal cannot be satisfied on current evidence that on remorse and promises alone, Mr Mahmood will not operate a motor vehicle in a manner which will endanger the Australian community. Other than Mr Mahmood’s claim to never drive "commercially" again, there is very little material in support of his rehabilitative efforts.

   ·Limited weight should be placed on the opinion of Ms Fercher-Barrett (that Mr Mahmood presents a very low risk for recidivism or for engaging in general antisocial behaviours) for the following reasons:

   oFirstly, Ms Fercher-Barrett was not originally provided with Mr Mahmood’s full driver history, including details of his traffic offending, that whilst she had now been shown this information her original report had not had the benefit of that information.

   oSecondly, while Ms Fercher-Barrett referred to information about Mr Mahmood’s traffic offending contained in Judge Todd's sentencing remarks, the information contained in the sentencing remarks did not expand on the nature of those traffic offences (e.g. 'careless driving' and 'turn improperly'). The information contained in Judge Todd's sentencing remarks also did not reveal that Mr Mahmood had his licence suspended for demerit points from February to May of 2015.

   oThirdly, Ms Fercher-Barrett relied on Judge Todd's reference to Mr Mahmood’s prior traffic history as "minor driving offences" which minimises the seriousness of those traffic offences; what should be understood by Judge Todd's remarks is that the traffic offending is considered 'minor' in the context of the sentencing task where only entries of a defendant's criminal history can be taken into account in the sentencing exercise.

   ·While only of very limited utility in the sentencing exercise, the Respondent respectfully submits that Mr Mahmood’s traffic offending, whether it be more minor offending (such as breach of the Australian road rules when compared against criminal driving offences), remain highly relevant to the Tribunal's task of assessing the risk of reoffending. Mr Mahmood’s prior driving history demonstrates his repeated indifference to the road rules and accordingly his risk of reoffending in a similar manner.

3. The Respondent contended that the Tribunal ought to place significant weight on Primary Consideration 1 in favour of affirming the Reviewable Decision.

   Findings

4. The Tribunal considered the seriousness of Mr Mahmood’s offending alone should not determine the weight given in Primary Consideration 1. The Tribunal did not concur with the delegate or Respondent’s contention that Mr Mahmood posed an unacceptable risk to the Australian community if he were to be given the privilege of a visa to remain in Australia.

5. The Tribunal concurred with the delegate that Mr Mahmood was an exceptionally low risk of reoffending, and the Tribunal does not dispute Mr Mahmood’s offending was serious and if he reoffended, would again cause harm to the Australian community. However, the Tribunal could not find on the evidence that Mr Mahmood posed a risk of reoffending. The best indication of this was his three years of driving without incurring an infringement whilst on bail.

6. The Tribunal relied on the expert advice of Ms Fercher-Barrett's evidence, who the Tribunal found to be a credible witness. She presented a coherent rationale for her assessment of Mr Mahmood and his low risk of reoffending whilst not advocating on his behalf. The Tribunal relied upon Ms Fercher-Barrett's expert evidence in determining that Mr Mahmood had exceptional protective factors to reoffending as he did not drink, take drugs or have any history of anger or violence, he had access to stable housing and employment, a loving wife and children, and a desire to stay in Australia. In Ms Fercher-Barrett's clinical assessment Mr Mahmood presented as an incredibly low risk of reoffending and the Tribunal concurred with this assessment.

7. The Tribunal was not persuaded by the delegate or Respondent’s contention Mr Mahmood had failed to avail himself of rehabilitative efforts specifically targeted to his offending behaviour. The Tribunal was impressed by Mr Mahmood’s endeavours to seek out as many developmental and rehabilitative opportunities as he could whilst in prison. The Tribunal considered that both Mr Mahmood and Ms Fercher-Barrett had expressed the view that the normal programs available to offenders would have been of no benefit to Mr Mahmood, as he did not drink, take drugs, have anger issues or demonstrated any antisocial behaviours. The Tribunal drew upon Ms Fercher-Barrett's report:

   10.10 .. The offending appears to reflect an uncharacteristic lapse in judgement, rather than being indicative of inherent reckless, impulsive, erratic, or antisocial traits.

   And her Honour’s sentencing remarks:

   29.  It is clear that many of the indicia present in some forms of dangerous driving were absent in your case: you were not speeding, intoxicated, driving aggressively or competitively nor avoiding police pursuit nor were you sleep deprived. You were not using your mobile phone.

8. The Tribunal considered Mr Mahmood had endeavoured to undertake relevant programs having completed Programs in Positive Problem Solving and Grief and Loss (Exhibit A4). This in addition to Mr Mahmood’s recognition he would never drive commercially again, is a sign he is taking steps to avoid reoffending. The Tribunal considers Mr Mahmood had shown insight and understanding into his offending given that whilst on bail he could have returned to work as a taxi driver or courier, as his licence had not been cancelled or suspended during this period.

9. The Tribunal considers Mr Mahmood’s driving offences in total are considerable and do show disrespect for road laws as he had accrued 23 demerit points in four years for eight driving offences, whilst working as a taxi driver. However, the Tribunal did not consider these traffic infringements demonstrated Mr Mahmood was at risk of causing another serious traffic offence; concurring with her Honour’s sentencing remarks that these were minor driving offences.

10. The Tribunal also relied upon Ms Fercher-Barrett's evidence that:

    ·reviewing Mr Mahmood’s demerit point extract did not change her opinion about Mr Mahmood’s risk of recidivism.

    ·Mr Mahmood’s traffic history “was both a predictor of future behaviour and also was not”. However, in her assessment in totality still considered him of minimal risk as they were minor traffic offences, incurred when he was on the road all the time as a taxi driver.

    ·during Mr Mahmood’s three years on bail, he incurred no traffic offences, which she asserted clearly demonstrates Mr Mahmood is unlikely to have driving offences in the future.

    ·Mr Mahmood was extremely remorseful for what occurred, which in itself will make him very careful going forward,

    ·Mr Mahmood’s protective factors (he has a stable home, strong family support, no drug, alcohol, anger or antisocial issues) outweighed any other consideration of determining risks of reoffending and he had no intention of returning to being a taxi driver or driving commercially in any form.

11. In this particular matter the Tribunal had the distinct advantage of being able to assess Mr Mahmood’s risk of reoffending and to judge his risk of recidivism. Mr Mahmood was a model citizen in the three years he was on bail: he worked full time, supported his family, continued to drive, participate in voluntary activities, practice his faith, no longer drove commercially and did not incur any traffic infringements. He was a loving, supportive husband and father. The Tribunal, drawing upon the determination in Taufahema v Minister for Immigration and Citizenship [2010] FCA 328 (‘Taufahema’) at 27 citing Kioa v West (1985) 159 CLR 550, relied upon the evidence available to it of Mr Mahmood’s behaviour in the community for three years where he committed no offences including no driving infringements of any kind:

    In Kioa at 627, Brennan J said that what the principles of natural justice require in particular circumstances depends on the circumstances known to the repository of the power at the time of the exercise, or the further circumstances which, had the repository acted reasonably and fairly, he or she would then have known. In my opinion, the emphasis is upon what the repository of the power knew or would then (that is, at the time he or she exercises the review function) have known.

12. The Tribunal concluded, aside from this serious offence, there was no ‘frequency’ of offending nor any trend of increased seriousness. There was no evidence before the Tribunal of any untruthful information being provided by Mr Mahmood to the Department nor of any previous immigration warning, in writing or otherwise.

13. The Tribunal finds the application of weight to Primary Consideration 1 complex as there are many factors involved. The Tribunal finds the first part of the consideration, the nature and seriousness of the offence, weighs heavily against revoking the mandatory cancellation of the visa, as Mr Mahmood’s actions led to the death of an elderly person and serious injury of another.

14. In terms of the second part of the consideration, the risk of reoffending, the Tribunal finds this weighs strongly in the direction of revocation, as the risk of Mr Mahmood reoffending is considered very low, even possibly negligible as outlined above.

    Primary Consideration 2: Family violence committed by the non-citizen (paragraph 8.2)

15. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.

16. There is no evidence that this primary consideration is engaged.

    Primary Consideration 3: Strength, nature and duration of ties to Australia (paragraph 8.3)

17. There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen’s immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)). The Tribunal should give more weight to ties where they have a child who is a citizen, or resides here permanently, and consideration to family or social links more generally (8.3(2)-(3)).

18. The Tribunal must also give consideration to a non-citizen’s ties to the community more broadly, having regard to the length of residence in Australia (8.3(4)). The Tribunal must give considerable weight to the fact that a non-citizen has resided in Australia during and since their formative years, regardless of when their offending commenced or its severity, with more weight given to any positive contribution to the community in this time (8.3(4)(a) (i-iii)).

19. In her sentencing remarks on 23 November 2021 her Honour noted:

    37.  Your time in Australia has been characterised by consistent hard work and study. Evidence of a wide range of educational and vocational achievements were tendered on your plea. You started working in a car wash, got your taxi driver's licence and volunteered at the Bonfire Café Pakistani restaurant in Springvale. You have gone on to complete courses in hospitality management, English, and business.

    38.  You now live with your wife and sons in rented accommodation…

20. Ms Fercher-Barrett in her report of 21 May 2023 opined:

    11.4 Facing deportation is resulting in significant emotional distress for Mr Mahmood, who sought to settle in Australia so as to provide a better quality of life for his children. Deportation will have a substantive detrimental impact on Mr Mahmood, his wife and their two children – potentially changing their life course. His two sons aged 6 and 7 years have spent the majority of their lives here. They have reportedly settled in at their school with their friends and deportation will undoubtedly be disruptive and distressing for them.

21. Mr Mahmood’s Statutory Declaration dated 25 October 2023 states:

    43.  I agree with the delegate that I have strong immediate family ties to Australia and strong other family and social ties to Australia.

    …

    45.  However, I disagree that the strength, nature and duration of my ties to Australia only "slightly" weigh in favour of revocation. In this conclusion, the delegate has considered that because my "formative years" were not spent in Australia, this consideration only weighs slightly in favour of revocation.

    46.  I submit that whilst my childhood years were not spent in Australia, my 11 years in Australia have nonetheless been extremely formative, specifically with regards to my role as a father. I have spent my entire time as a father living in Australia and learning to raise my children in this country. This process has proven incredibly formative. As such, were I to be deported from Australia, I believe I would no longer have the same support network and resources available to me to raise my children the same way.

    47.  Further, whilst my childhood years were not spent in Australia, I arrived at or around the age of 23. At this age, whilst I was not considered a child, was still an extremely formative stage in my life with me still learning and building upon my character, my abilities, my interests and my personality as a whole. I note that a person's brain is not fully developed until approximately the age of 25 and as such, I believe that I spent a number of years in Australia still developing.

    48.  In light of the above, I strongly agree with the delegate that my ties to the Australia weigh in favour of revocation of the visa cancellation, however I disagree with the level of eight applied to the consideration. I believe that on balance, my ties to the Australian community should weigh strongly in favour of revocation of the visa cancellation.

22. Ms Ashraf’s Statutory Declaration dated 20 October 2023 states:

    7.    As my partner moved to Australia with every intention of making it his permanent home, he has no place of residence in Pakistan.

    8.    Similarly, our children and I relocated to Australia (with my partner sponsoring us) with the intention of permanently living here. My partner and I still want to live in Australia and continue to raise our children here…

    Submissions

23. Mr Mahmood’s counsel submitted that:

    ·Mr Mahmood has strong immediate family ties to Australia as well as strong other family and social ties to Australia.

    ·Mr Mahmood has other ties to the Australian community, especially his continuous employment and positive contribution to the community, and these have not been disputed by the Respondent.

    ·Whilst Mr Mahmood’s childhood years were not spent in Australia, his 11 years in Australia have nonetheless been extremely formative, specifically with regards to his role as a father. Mr Mahmood has spent his entire parental life in Australia and has learnt to raise his children in this country. This process has proven incredibly formative for Mr Mahmood. As such, were Mr Mahmood to be deported from Australia, he would no longer have the same support network and resources available to him to raise his children the same way. Further, by spending his entire parental life in Australia, Mr Mahmood has formed significant ties to the community, specifically through his children such as via their schools.

    ·Whilst Mr Mahmood‘s childhood years were not spent in Australia, he arrived in Australia at or around the age of 23. At this age, whilst not a child, Mr Mahmood was still experiencing an extremely formative stage in his life with him still learning and building upon his character, abilities, interests and his personality as a whole. It is well documented that a person's brain is not fully developed until approximately the age of 25 and that men typically reach full maturity at a later age around their mid-to-late 20s. As such, it is submitted that whilst Mr Mahmood may not have spent his childhood and most formative years in Australia, he certainly spent his final formative years in Australia whilst he was still developing as a young adult.

    ·It is undisputed that Mr Mahmood’s ties to the Australian community weigh in favour of revocation of the visa cancellation.

24. In all of these circumstances, Mr Mahmood’s counsel contended, on balance, Primary Consideration 3 - Strength, Nature and Duration of Ties to Australia should weigh strongly in favour of revocation of the visa cancellation.

25. The Respondent submitted that the Tribunal ought to place weight on the following:

    ·Mr Mahmood’s construction of "formative years" should be rejected. It is clear that Mr Mahmood came to Australia as an adult and has not spent his formative years in Australia.

    ·Mr Mahmood has an employment history in Australia, as well as a history of volunteering, which demonstrates some links to the Australian community. However, Mr Mahmood came to Australia as an adult and has not spent his formative years in Australia. Accordingly, less weight ought to be attributed to any ties that Mr Mahmood does have to Australia.

    ·Paragraph 8.3(1),(2) and (3) of the Direction requires decision-makers to consider the impact of a decision on the applicant’s immediate family members and children who are Australian citizens, Australian permanent residents or have a right to remain in Australia indefinitely. These considerations do not arise in circumstances where the applicant’s wife and children are temporary residents of Australia. Insofar as it is contended otherwise, the Tribunal should place no weight on the applicant’s ties with his wife and children in circumstances where they are temporary residents of Australia. Further, Mr Mahmood’s extended family (his parents, 8 sisters, 13 uncles, 13 aunties, 7 nieces, 7 nephews, 30 cousins) live in Pakistan.

1. In all of these circumstances, the Respondent contended that Primary Consideration 3 can only attract very minimal weight (if any) in favour of revocation of the Reviewable Decision and that this primary consideration does not outweigh the other considerations which weigh against revocation of the Reviewable Decision.

   Findings

2. The Tribunal notes there was no dispute that Mr Mahmood had ties to Australia, what was in contention was the weight to place on Primary Consideration 3.

3. The Tribunal does not consider Mr Mahmood has spent any of his formative years in Australia.

4. The Tribunal finds Mr Mahmood has made strong links in Australia as he is committed to the migrant dream of making a better life for his children in his adopted country.

5. The Tribunal relied upon Ms Ashraf’s evidence of the ties the family has made in Australia, as she clearly articulated the benefits to her children in remaining in Australia, the friends they have made and the connection with their school and wider community.

6. The Tribunal notes her Honour observed in her sentencing remarks:

   44.  I have already mentioned your previous good character. This was also attested to by several character references whose letters were tendered on your plea and who speak of you as being 'reliable, honest, hardworking, and down to earth'.

   45.  You're clearly a hard-working and enterprising person. You are enrolled in a diploma of business course, a diploma of hospitality management, and certificates in commercial cookery.

   46.  You are described in one of the references as a wonderful employee possessing confidence, technical skill, reliability and trustworthiness, among other qualities. You come from a good family where no one has been in trouble with the criminal law. You do not use alcohol or drugs. You are a practicing Muslim.

7. The Tribunal found that Mr Mahmood’s strength, nature and duration of ties to Australia as a primary consideration, weighs in favour of revocation of Mr Mahmood’s visa cancellation as he has lived here for 11 years. During this time, he has been continuously employed, has undertaken extensive skills training to enable him to further contribute to Australia, has contributed to the community through volunteering, and has developed strong links in his community particularly at his children’s schools and his place of worship.

   Primary Consideration 4: Best interests of minor children in Australia affected by the decision (paragraph 8.4)

8. The Tribunal must determine whether or not a decision not to revoke the visa cancellation is in the best interests of a child affected by the decision (8.4(1)). The interests of children should be considered individually, and a range of specific factors are identified as relevant (8.4(3)-(4)).

9. Ms Fercher-Barrett in her report of 21 May 2023 opined:

   8.1 Should Mr Mahmood’s visa cancellation be upheld his children and wife will also have to leave Australia. His children have lived in Australia since 2018 and are now aged 6 and 7 years. Mr Mahmood advised that they have settled into school, have made friends, and they only speak English. He stated, “if I am deported they will put me so I can’t come back ever again in my life, and my children as well. If they revoke my visa I know I don’t have a chance here, and I can’t visit Commonwealth countries”. His primary concern was for his children’s wellbeing and future as he considers Australia to be a more suitable environment to raise them with better future prospects.

10. Mr Mahmood’s Statutory Declaration dated 25 October 2023 states:

    50.  Whilst my children are nationals of Pakistan and have a right to reside there, by deporting me and in tum my children from Australia and forcing them to return to Pakistan, their best interests are not being met.

    51.  I strongly believe it is in the best interests of my children to remain in Australia, despite the availability of Pakistan as a country to reside. The primary reasons for such are that my children have spent almost their entire lives in Australia and they know little of how to live somewhere else, especially in a country so different as Pakistan. I believe, that such an upheaval from their way of life will result in their significant suffering. This notion was mentioned in Ms Fercher-Barrett's Psychologist Report.

    52.  Further, my children have comfortably integrated within the Australian community by settling in at their schools and making friends. I believe that to take such away from them is not in their best interests as it has the potential to affect them drastically.

    53.  A removal to Pakistan would greatly affect my children's wellbeing and stability. This is especially prevalent as my children have spent the majority of their lives in Australia (which I note is during their formative years) and only speak English.

    54.  I also strongly believe that it will be difficult for my partner and I to obtain secure and comfortable employment in Pakistan. This will likely result in the hinderance to the level of financial support we would be able to provide our children in Pakistan. On the other hand, were my family and I permitted to continue living in Australia, we would continue with our employment and continue being able to adequately support our children financially as they grow up.

    55.  There remains the additional issue that my partner and I do not have a home or place to reside in Pakistan were we to be forced to return there. This, compounded with the fact that we will not have immediate employment and will have difficulty finding such, leads me to believe that there will be issues with obtaining secure and safe housing for our children. Were I and my children permitted to stay in Australia however, they would continue to live in their safe house which they know and are comfortable with. I strongly believe that is in their best interests.

    56.  In addition to the inherent immediate repercussions of my children's removal from Australia, I believe that Australia has abundantly more opportunities for my children than Pakistan does. That is one of the primary reasons I migrated to Australia in the first place. I believe that were my children to progress their education and lives in Australia, they will be faced with significantly more and better opportunities for their futures than they would if they continued their education and lives in Pakistan. I believe Australia offers more and better opportunities not only in relation to education and therefore future work, but also simply with regards to livelihood and things such as (but not limited to) their potential peers, mentors, environments and recreational opportunities. I strongly believe that removing me and therefore my children to Pakistan is restricting their future opportunities and is not in my children's best interests.

    57.  I believe that the immediate repercussions of removal from Australia (as discussed above) for my children would also ripple through their formative childhood years. This I worry will seriously limit their future opportunities. Instead, as discussed, were they to be permitted to continue their lives in Australia, such opportunities would not be limited or made more difficult to achieve.

    58.  When considering my children's ability to integrate into the Pakistani community, the delegate notes that "they can continue to receive their education in Pakistan". I do not believe my children will be able to receive any form of significant education for numerous years after a removal to Pakistan as they can only speak English. My partner and I, and my extended family, do not have the ability to appropriately teach or tutor my children. As such, my children will be unable to continue any level of education for a significant period of time. It is not in the best interests of my children for them to be removed to Pakistan.

11. Ms Ashraf’s Statutory Declaration states:

    9.    Should myself and our children be forced to leave Australia, this will not only severely impact mine and my partner's lives, but our children's lives and futures will be greatly affected.

    10.  I believe that such a drastic change and move away from Australia would affect our children's development and ability to have a meaningful relationship with their father.

    …

    15.  Should my partner’s visa be cancelled, this will continue to severely affect the level of financial contribution he can provide our children and I. This may in turn drastically affect the livelihood and stability of our minor children’s lives.

    16.  Our entire family unit resides in Australia and have made it our home. Our children have lived most of their lives in Australia and I believe it would be extremely detrimental to them should my partner, and subsequently us, be forced to leave Australia.

    Submissions

12. Mr Mahmood’s counsel submitted that:

    ·Whilst it is agreed that Mr Mahmood’s two minor children are not permanent residents or citizens of Australia, it is submitted that as Australian visa holders who reside in Australia, their best interests must still be properly considered.

    ·Whilst Mr Mahmood’s children are nationals of Pakistan and have a right to reside there, by deporting Mr Mahmood and in turn his children from Australia and forcing them to return to Pakistan, their best interests are not being met.

    ·It is in the best interests of Mr Mahmood’s two minor children to remain in Australia, despite the availability of Pakistan as a country to reside. The primary reasons for such are that Mr Mahmood’s children have spent almost their entire lives in Australia and they know little of how to live somewhere else, especially in a country so different as Pakistan. Such an upheaval from their way of life will result in their significant suffering.

    ·The Tribunal should place weight on the evidence of Ms Fercher-Barrett to the impact of removal on Mr Mahmood’s children.

    ·Further, Mr Mahmood’s children have comfortably integrated within the Australian community by settling in at their schools and making friends. To take such away from them is not in their best interests as it has the potential to affect them drastically.

    ·A removal to Pakistan would greatly affect the minor children's wellbeing and stability. This is especially prevalent as Mr Mahmood’s children have spent the majority of their lives, during their formative years, in Australia and only speak English.

    ·It will be difficult for Mr Mahmood and his partner to obtain secure and comfortable employment in Pakistan. This will likely result in the hinderance to the level of financial support they would be able to provide their minor children in Pakistan. On the other hand, were Mr Mahmood and his family permitted to continue living in Australia, they would continue with their employment and continue being able to adequately support their children financially as they grow up.

    ·Additionally, Mr Mahmood and his partner do not have a home or place to reside in Pakistan if they were forced to return there. This, compounded with the fact that they will not have immediate employment and will have difficulty finding such, will likely result in them facing issues with obtaining secure and safe housing for their children. Were Mr Mahmood and his children permitted to stay in Australia however, they would continue to live in their stable home which they know and are comfortable with.

    ·Australia has abundantly more opportunities for the minor children than Pakistan. It is submitted that were Mr Mahmood’s children to progress their education and live in Australia, they will be faced with significantly more and better opportunities for their futures than they would if they continued their education and lives in Pakistan. It is submitted that Australia offers more and better opportunities, not only in relation to education and therefore future work, but also simply with regards to livelihood and things such as (but not limited to) their potential peers, mentors, environments and recreational opportunities. It is submitted that removing Mr Mahmood, and therefore his minor children, to Pakistan is restricting the children's future opportunities and is not in their best interests.

    ·The immediate repercussions of removal from Australia for Mr Mahmood’s children would ripple through their formative childhood years. Mr Mahmood and his partner worry that the removal from Australia will seriously limit their future opportunities. Instead, as discussed, were they to be permitted to continue their lives in Australia, such opportunities would not be limited or made more difficult to achieve.

    ·Mr Mahmood’s children will not be able to receive any form of significant education for numerous years after their removal to Pakistan as they can only speak English. Mr Mahmood, his partner, and their extended family in Pakistan, do not have the ability or skills to appropriately teach or tutor the minor children. As such, Mr Mahmood’s children will be unable to continue any level of education for a significant period of time after their deportation. It is extremely important for children to participate effectively in their education during their formative childhood years and to restrict such from them is not in their best interests. It is submitted that it is not in the best interests of Mr Mahmood’s children for them to be removed to Pakistan.

13. In all of these circumstances, Mr Mahmood’s counsel contended that Primary Consideration 4 – Best interest of the minor child strongly weighs in favour of the revocation of the Applicant’s visa cancellation.

14. The Respondent submitted that:

    ·The submissions made by Mr Mahmood’s counsel to support that revocation of the cancellation decision is in the best interests of his two children are matters that fall outside of the Tribunal's mandatory considerations at 8.4(4), and accordingly, should be afforded little weight.

    ·The Tribunal's task when considering Primary Consideration 4 is not to examine all the ways in which the removal of Mr Mahmood’s may, or may not, impact his children. Instead, the Tribunal is to consider matters at 8.4(4) predicated on the assumption that if the Reviewable Decision were to be affirmed, the parent and child would be separated by reason of the removal of the parent from Australia.

    ·To the extent the Tribunal finds that it would be in the children’s best interests for the discretion to revoke to not be exercised, consideration should be afforded reduced and limited weight in the Applicant’s favour because:

    a)if the Tribunal accepts that Mr Mahmood poses an appreciable risk of reoffending, that would diminish the extent to which Mr Mahmood’s is likely to play a positive parental role in the remaining period until the children turns 18 (paragraph 8.3(4)(b)).

    b)if the applicant is removed to Pakistan, there is nothing to suggest that he would be unable to stay in contact with his children by electronic and other means or that the family, being temporary visa holders, would return to Pakistan.

    c)there is also very limited evidence to support the contention that Mr Mahmood’s children will face difficulty integrating into the Pakistani community and education system of the kind asserted. Whilst relocation may have practical and linguistic challenges, the children are young and Mr Mahmood has an extensive family network in Pakistan consisting of his parents, sisters, aunties, uncles and cousins.

15. In these circumstances the Respondent contended that Primary Consideration 4 weighs in favour of affirming the Reviewable Decision. The Respondent contended any weight to be afforded to this consideration in Mr Mahmood’s favour does not outweigh Primary Considerations 1 and 5 which weigh significantly against Mr Mahmood.

    Findings

16. The Tribunal had the benefit and delight of watching Mr Mahmood interact with his children during the hearing, observing a close and affectionate bond between them. The Tribunal also observed the children were communicating with their parents in English.

17. The Tribunal was not persuaded by the Respondent’s view that this consideration is not enlivened in this particular case, submitting that the determination only considered the implication of impacted children if they are to be separated from their parent when their visa is cancelled. The Respondent submitted Mr Mahmood will continue to have contact with his children as they will have to leave Australia with him as they are not Australian citizens and their right to remain in Australia is contingent on their father’s visa.

18. The Tribunal did not concur with this view as the determination states the best interests of minor children in Australia affected by the decision and Mr Mahmood’s children will be clearly impacted by this decision.

19. The Tribunal considered it was required to consider the best interest of the children in this case, notwithstanding they are not permanent residents, and their visa status is linked to their father’s. Fundamentally if Mr Mahmood’s visa cancellation is not revoked the entire family would be required to return to Pakistan. The Tribunal did not explore the situation if Ms Ashraf was granted her own visa to remain in Australia, whilst that may be a complicating factor in the future it was not a current relevant factor for the Tribunal to base its determinations upon.

20. The Tribunal finds this determination is relevant to Mr Mahmood’s children as they will be impacted by the determination: they are under 18 years old; Mr Mahmood is their father and has been actively involved in the lives since birth; Mr Mahmood plays a significant positive parental role with his children even in prison and detention with constant interaction via video call; there is no issue of domestic violence or abuse; whilst the children have their mother who fulfils a parental role there is no dispute the children also need their father and it is not clear if the children would be separated from Mr Mahmood if his visa were cancelled as discussed before as Ms Ashraf is determined to ensure her children can remain in Australia.

21. The Tribunal finds that Mr Mahmood’s children would be severely impacted if his visa was cancelled, and the family had to return to Pakistan. The Tribunal considered that:

    (a)The children would struggle to adapt to a new language, culture, and environment, having lived in Australia in their formative years.

    (b)They would be separated from friends and school community.

    (c)The situation for the children would be greatly impacted as Mr Mahmood has no means in Pakistan to support his family as he has no job, financial support or residence in Pakistan.

    (d)The situation would undoubtedly be compounded by Mr Mahmood’s mental health as his anxiety and depression would undoubtedly be adversely impacted by his deportation.

22. The Tribunal finds it is in the best interests of the children to be able to remain in Australia in a loving and supportive family, to be able to pursue the benefits of the Australian education system, to have access to the Australian health care system, and to continue to live in stable housing supported financially by their father.

23. Accordingly, the Tribunal found this consideration weighs strongly in favour of revocation.

    Primary Consideration 5: Expectations of the Australian Community (paragraph 8.5)

24. This consideration expresses in normative language that where a non-citizen has breached the expectation that they obey the law, or engage in serious conduct in breach of the expectation, that they not be allowed to remain in Australia (8.5(1)). The Direction also provides that non-revocation may be appropriate due to the particular nature of character concerns that arise, including from acts of family violence, and commission of crimes against government representatives or officials, regardless of whether there is a measurable risk of physical harm to the Australian community (8.5(2)-(3)). The Tribunal is not to conduct an independent assessment of what might constitute community expectations in a particular case (8.5(4)).

1. The Tribunal considered her Honour’s remarks in the matter of Tanielu at [155] were most germane in Mr Mahmood’s case, as the Tribunal has a clear indication of the likelihood of harm he may cause:

   In turn, a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring.

2. The Tribunal considered that a finding which is proportionate to the nature and circumstances of Mr Mahmood’s offending which resulted in the death and serious injury of elder Australians, is that this consideration weighs against revocation. However, the Tribunal does not concur with the view of the delegate and the Respondent that this consideration has such weight it outweighs all the other considerations.

3. The Tribunal relied upon Ms Fercher-Barrett's report:

   5.2 Mr Mahmood impressed as sincere in his expressions of remorse and sorrow for the offending. At no time did he attempt to minimise or blame others. He did not express sentiments or attitudes that would suggest he condones dangerous driving behaviours or other reckless actions. He accepts full responsibility for his behaviour and he acknowledged the irreparable harm his actions have caused.

4. The Tribunal considered that given Mr Mahmood’s lack of risk of reoffending this determination was not considered determinative by the Tribunal.

   OTHER CONSIDERATIONS

   Legal consequences of the decision (paragraph 9.1)

5. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see section 198 of the Act), noting that section 197C(1) of the Act provides that, for the purposes of section 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

6. The Tribunal finds that there are no non-refoulement obligations that need to be observed in this situation. Neither Mr Mahmood nor the Respondent sought to pursue this argument because international non-refoulement obligations arise in a situation where a person may be removed to a country and face the prospect of being subjected to cruel or unusual punishments and this would not be the case for Pakistan.

   Extent of impediments if removed (paragraph 9.2)

7. The Tribunal must consider the extent of impediments a non-citizen may face if removed 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)’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.

8. Ms Fercher-Barrett in her report of 21 May 2023 opined:

   11.4 Facing deportation is resulting in significant emotional distress for Mr Mahmood, who sought to settle in Australia so as to provide a better quality of life for his children. Deportation will have a substantive detrimental impact on Mr Mahmood, his wife, and their two children – potentially changing their life course. His two sons aged 6 and 7 years have spent the majority of their lives here. They have reportedly settled in at their school with their friends and deportation will undoubtedly be disruptive and distressing for them.

9. Mr Mahmood’s Statutory Declaration states:

   66.  With regards to my age and health, I do not believe the delegate appropriately considered my mental health issues when considering the extend of impediments if removed to Pakistan. Whilst the delegate did identify the fact that I suffer from ankylosing spondylitis and anxiety (as articulated in Ms Fercher-Barrett’s Psychologist Report), they did not consider the effects this will have on my ability to find employment and interact within the Pakistani community. I believe that my medical condition, compounded by the increased stresses of moving to Pakistan and supporting my family during their move, would drastically worsen and potentially affect my ability to work at the same ability I am usually accustomed too, despite my hardworking nature.

   67.  Further, Pakistan does not have the same ease of access or same standard of mental health services and treatment for my particular circumstances than in Australia. As such, I believe a removal to Pakistan would not only incredibly worsen my current mental health status, but will snowball into also affecting my ability to work effectively, employability, ability to financially support my family, and ability to achieve a sound livelihood.

   68.  Whilst my parents and sisters do reside in Pakistan, they will not be able to provide significant levels of financial, practical or physical support to myself and my immediate family.

   69.  When considering my children’s ability to integrate into the Pakistani community, the delegate notes that “they can continue to receive their education in Pakistan”. I do not believe my children will be able to receive any form of significant education for numerous years after a removal to Pakistan as they can only speak English. My partner and I, and my extended family, do not have the ability to appropriately teach or tutor my children. As such, my children will be unable to continue any level of education for a significant period of time. It is not in the best interests of my children for them to be removed to Pakistan.

   70.  My family and I would be extremely impeded were we to be removed to Pakistan. As such, I believe this other consideration should weigh in favour of revocation.

   Submissions

10. Mr Mahmood’s counsel submitted that:

    ·The extent of impediment to Mr Mahmood and his family if removed to Pakistan was significant.

    ·Mr Mahmood’s ability to find reasonable employment and interact within the Pakistani community would be greatly impacted by his health as noted in Ms Fercher-Barrett's report he is suffering from ankylosing spondylitis and anxiety.

    ·Mr Mahmood’s medical condition, compounded by the increased stresses of moving to Pakistan and supporting his family during their move, would drastically worsen and potentially affect his capacity to work at the same ability he usually is accustomed to, despite his hardworking nature.

    ·Further, when compared to Australia, Pakistan does not have the same ease of access or same standard of mental health services and treatment for Mr Mahmood’s particular circumstances. As such, it is submitted a removal to Pakistan would not only incredibly worsen Mr Mahmood’s current mental health status but will snowball into also affecting his ability to work effectively, employability, ability to financially support his family, and ability to achieve a sound livelihood.

    ·Whilst Mr Mahmood’s parents and sisters do reside in Pakistan, they will not be able to provide significant levels of financial, practical or physical support to him and his immediate family, including their two minor children.

    ·Mr Mahmood’s children's ability to integrate into the Pakistani community, will not be easy or straightforward as they will not be able to receive any form of significant education for numerous years after their removal to Pakistan as they can only speak English. Mr Mahmood, his partner, and their extended family in Pakistan, do not have the ability or skills to appropriately teach or tutor the minor children. As such, Mr Mahmood’s children will be unable to continue any level of education for a significant period of time after their deportation. It is extremely important for children to participate effectively in their education during their formative childhood years and to restrict such from them is not in their best interests.

11. Mr Mahmood’s counsel contended Mr Mahmood and his family would be extremely impeded were they to be removed to Pakistan therefore this other consideration should weigh in favour of revocation of the visa cancellation.

12. The Respondent submitted that:

    ·Mr Mahmood’s medical history should not be considered to represent a serious impediment to his returning to Pakistan.

    ·There was no evidence outside of Mr Mahmood’s self-reported history to Ms Fercher-Barrett that he is diagnosed with an autoimmune condition called ankylosing spondylitis, and Ms Fercher-Barrett, whilst diagnosing Mr Mahmood with mental health issues, only scored him within mild range for depression and severe range for anxiety.

    ·There was very limited evidence to support the contention that Mr Mahmood’s conditions could not be adequately managed in Pakistan, or that Mr Mahmood would be unable to access any social, medical and/or economic support available to him in Pakistan.

    ·Further, there does not appear to be any linguistic or cultural barriers to Mr Mahmood re-establishing himself in Pakistan (paragraph 9.2(1)(a)(b) the Direction).

    ·Further, insofar as Mr Mahmood contended that his children would face impediments if returned, paragraph 9.2 of the Direction is concerned with impediments that the non-citizen (being the Applicant here) may face if removed from Australia to their home country, rather than the impediments of their wife, children or family. Accordingly, no weight should be placed on these representations.

    ·There was very limited evidence to support the contention that Mr Mahmood’s children will face impediments of the kind asserted.

13. Accordingly, on the evidence before the Tribunal, the Respondent contended little weight should be afforded to the claimed impediments of Mr Mahmood if removed.

    Findings

14. The Tribunal did not concur with the delegate’s assertion (Exhibit R1, 25):

    68.  I recognise the children's ages of seven and six years old are at the beginning of their learning journey; and they are at the ages when they are flexible and adaptive to changes. They can continue to receive their education in Pakistan. I find Mr MAHMOOD, his spouse and their extended families can help with their readjustment to the new environment living in Pakistan. I recognise the move can be disruptive, and they may find it difficult to re-adjust in the beginning; but I do not agree it would be 'distressing' and cause 'significant suffering' for them as reported by the psychologist.

15. The Tribunal concludes that Mr Mahmood would have no practical difficulties in re-assimilating if returned to Pakistan. Mr Mahmood did not advance evidence of any language or cultural barriers that would be present, in relation to him. Mr Mahmood did stress his children would be extremely disadvantaged if removed as they only speak English, have lived all their formative years in Australia and would find rural life in Pakistan a complete cultural shock.  Mr Mahmood and Ms Ashraf both attested to the difficulty they would face in finding employment and housing if they were removed to Pakistan.

16. The Tribunal accepts that the medical services, healthcare, education, housing and employment in Pakistan are likely to not be comparable to what is available in Australia, but that is not the yardstick which the Direction requires the Tribunal to apply. There is no evidence before me that Mr Mahmood and his family would not have the same access to such services as any other Pakistani citizen. 

17. Whilst it is not disputed that Mr Mahmood has an extensive family network in Pakistan who may be able to offer him and his family assistance, if they were required to return there was no evidence that any family members were in a position to provide accommodation or financial support. There was no evidence to indicate that Mr Mahmood would be able to secure work to support his family if returned to Pakistan.

18. The Tribunal relied upon the evidence of Mr Mahmood, Ms Ashraf and Ms Fercher-Barrett who all asserted that if Mr Mahmood was required to leave Australia and take his family, his two children, who are very settled here having had a positive upbringing, would be greatly impeded. The evidence was that Mr Mahmood’s children who have already been impacted by their father’s absence for a considerable time whilst in prison and detention would be further unsettled if they had to leave the only country they know. The evidence before the Tribunal indicated that Ms Ashraf has struggled during her husband’s absence as she lacks support in the community and doesn’t speak much English, but she has no desire to return to Pakistan.

19. Ms Ashraf’s evidence to the Tribunal was she was fundamentally torn, as she dearly wanted to remain in Australia with her children and also wanted to remain with her husband. Ms Ashraf’s evidence was she accepted that if her husband lost his visa, she would be required to leave Australia, but this would be detrimental to her children. Given this, Ms Ashraf was seeking other avenues to stay under her own visa, but she acknowledges this would split the family apart and did not want to be separated from her husband nor the children from their father. Ms Ashraf’s dilemma was on display during the hearing.

20. The Tribunal had no conclusive evidence to consider Mr Mahmood’s claim of requiring medical support for his ankylosing spondylitis and so placed no weight on this claim. However, the Tribunal did conclude that Mr Mahmood was suffering from mental health issues which would require ongoing treatment and found this would be more difficult to access in rural Pakistan than metropolitan Melbourne.

21. Overall, given that the prospects for employment, housing and financial support are unclear, the Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.  The Tribunal considered that in particular Mr Mahmood’s children would be adversely impacted by being removed from Australia.

    Impact on victims (paragraph 9.3)

22. The Tribunal must consider any evidence of the impact of a non-citizen's offending on a member of the Australian community.

23. In her sentencing remarks on 23 November 2021 her Honour noted:

    39.  I must have regard to the impacts on the victims of your offending. The Devisser family elected not to write any victim impact statements. But even so, I must take into account the impact of the offending on them. Mrs Devisser lost her life in traumatic circumstances. Mr Devisser lost his wife of 59 years. He has spent a long time recovering from his injuries while in his grief. I am sure that he has suffered enormously. Mr and Mrs Devisser lost the chance of seeing out their later years together in peaceful good health. Their family (children, grandchildren, and great grandchild) have felt the strain not only of their loss but also the practical reality of caring for Mr Devisser in his recovery. I bear all these things in mind in arriving at your sentence.

    40.  On the plea, it was submitted by the prosecutor that the Devisser family have arrived at a position of forgiveness of you, Mr Mahmoud. Sometimes such expressions may lead to matters that might mitigate sentence, such as forgiveness supporting rehabilitation or that forgiveness might lead to an assessment that there were no or reduced ongoing consequences for the victims. No such submissions were made here, nor could there have been. The fact that the Devisser family has been able to arrive at this position simply establishes their fortitude and kindness; without, in the circumstances of this case, any legal consequences for this sentence.

    Submissions and findings

24. Mr Mahmood’s counsel made no submissions in respect of this consideration.

25. The Respondent submitted there was no evidence before the Tribunal as to the impact that a decision to revoke the cancellation decision might have upon any of the victims of Mr Mahmood’s offending. In these circumstances, the Respondent contended that this consideration is not relevant to the Tribunal's determination of the application for review.

26. Whilst no evidence has been presented to the Tribunal, it does have an indication of the impact on the victims from the sentencing remarks. Her Honour indicated that the family had arrived at a position of forgiveness for Mr Mahmood’s actions, demonstrating their fortitude and kindness. The Tribunal appreciates the victims of Mr Mahmood’s actions have not indicated a position of the impact of revocation of his visa and therefore determines this other consideration weighs neutrally.

    Impact on Australian business interests (paragraph 9.4)

27. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.

28. The Tribunal does not consider that there will be any impact on Australian business interests if the Applicant's visa remains cancelled or is restored. The Tribunal finds that this other consideration is therefore not engaged.

    CONCLUSION

29. In summation Mr Mahmood’s counsel contended that the Tribunal should determine there were other reasons to revoke Mr Mahmood’s visa cancellation. Counsel contended:

    ·Primary Consideration 1: weighs slightly in favour of revocation. At no stage has Mr Mahmood disputed the seriousness of his offence, he has insight into his offending as supported by the psychologist report, participated in all programs offered to him to address his offending and more importantly has not reoffended.

    ·Primary Consideration 2: there was no feature of family violence in Mr Mahmood’s offending.

    ·Primary Consideration 3: weighs strongly in favour of revocation. Mr Mahmood has been in Australia for 11 years; his children have known no country other than Australia and his partner is very settled here; they have built a life in Australia, and it would put the family in an untenable situation. The entire family would have to return to Pakistan, but they know that is not in the best interest of their children. This consideration favours Mr Mahmood as he migrated here at a respectful age; worked the majority of his adult life in Australia, has several skills required in Australia; done all his parenting in Australia and has contributed to the Australian community.

    ·Primary Consideration 4: weighs strongly in favour of revocation as it is undoubtedly in Mr Mahmood’s children’s best interest to remain in Australia, his children have been raised as Australians, they only speak English, would struggle to adapt to life in rural Pakistan and would not have the benefits of education, health and economic factors Australia offers them.

    ·Primary Consideration 5: weighs in favour of cancellation of Mr Mahmood’s visa however the weight of the Other Considerations outweighs Primary Consideration 5.

30. In summary the Respondent contended the Tribunal should affirm the determination to cancel Mr Mahmood’s visa as he had not spent his formative years in Australia, his offending was serious, his past history of horrendous driving offences indicated he was a risk of reoffending, the Australian public would expect his visa to be cancelled, his wife and children were not Australian citizens so limited weight could be given to consideration of ties to Australia and he faced no impediments if removed.

31. The Respondent took the Tribunal to the matter of summation of the case of Taufahema where his Honour Jacobson stated:

    24.  It seems to me to follow from this that the Tribunal is expected to come to its decision within a relatively short period of 84 days, because if it has not made a decision within that period, the Tribunal is taken to have affirmed the decision under review. It is true that Direction No. 41 points towards a more beneficial exercise of the power in favour of persons who have lived in Australia for a major portion of their life: see Direction No. 41, paragraph 5.2(4). It is also true that the relevant risk factors are to include evidence of the extent of rehabilitation and the prospect of further rehabilitation: see Direction No. 41, paragraph 10.1.2(2)(b). But I do not consider that these statements indicate that the Tribunal is to wait until all possible evidence as to the prospects of further rehabilitation are before it.

    25.  What the Tribunal was required to do was to consider the prospects of rehabilitation on the material before it. In my opinion, the thrust of Mr Gormly’s argument is contrary to what the High Court said in SZBEL at [25]. What underlies Mr Gormly’s submission is that in order to obtain a fair outcome, the decision ought to be made after evidence is available of the applicant’s attendance at the VOTP, but as the High Court said in SZBEL at [25], what is required by procedural fairness is a fair hearing, not a fair outcome. There is nothing in the statutory scheme, including Direction No. 41, which required the Tribunal, as a matter of procedural fairness, to wait until after the applicant completed the VOTP.

    26.  The fair opportunity to which the applicant was entitled was to present his case on the evidence available to him, at the time he appeared before the Tribunal. There is no suggestion that he was not given such an opportunity. The observations of Brennan J in Kioa v West (1985) 159 CLR 550 (“Kioa”) at 627, seem to me to support that conclusion. In my view, they do not, as Mr Gormly submitted, favour the argument which he advanced.

1. Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, “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".

2. Of the primary considerations the Tribunal found:

   ·That protection of the Australian community weighs in favour of revocation. Whilst Mr Mahmood’s offending was serious and has resulted in the death of an individual it was not an act of violence, it was his only offence, and he has shown great remorse and demonstrated he is not going to reoffend.

   ·The expectations of the Australian community weighs against revocation, given the serious nature of Mr Mahmood’s offending.

   ·The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh strongly in favour of revocation. It is the simple story of migration: Mr Mahmood and his family have come for a better life in Australia and Pakistan would not offer, particularly to his children, the same advantages as they can receive in Australia.

3. Of the other considerations, the Tribunal determined that the extent of impediments if removed, was engaged, finding that if Mr Mahmood and his family were to return to Pakistan this consideration weighed in favour of revocation.

4. The Tribunal fully appreciates that Mr Mahmood has breached the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis Mr Mahmood’s visa should be cancelled. However, overall, the Tribunal did find that his circumstances raise concerns of sufficient seriousness to warrant the outcome that his visa remain cancelled.

5. Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of Mr Mahmood’s visa should be revoked.

   DECISION

6. Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal finds there is another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of Mr Mahmood’s visa.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

...............................[sgd].........................................

Associate

Dated:  28 November 2023

Date of hearing:	14 – 15 November 2023
Advocate for the Applicant	Mr Tanguy Mwilambwe
Solicitors for the Applicant:	Taylor Rose
Advocate for the Respondent:	Ms Monique Munro
Solicitors for the Respondent:	Clayton Utz

APPENDIX

Exhibit	Document
A1	Mr Tayyeb Mahmood, Statutory Declaration dated 25 October 2023
A2	Ms Javeria Ashraf, Statutory Declaration dated 20 October 2023
A3	Ms Clare Fercher-Barrett, Psychologist Report dated 21 May 2023
A4	Program Certificates of Mr Tayyeb Mahmood from Courses completed 2021-2022
R1	G-Documents
R2	VicRoads Driving Record dated 17 October 2023