Mahmoodshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 159
•12 February 2020
Mahmoodshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 159 (12 February 2020)
Division:GENERAL DIVISION
File Number:2019/7567
Re:Jahan Mahmoodshahi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:12 February 2020
Place:Perth
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.................................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – insurance fraud – (attempted) gained benefit by fraud – gained a benefit for another by fraud – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to United Kingdom – Tribunal finds that there is another reason why the decision to cancel the Applicant’s visa should be revoked – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4),501CA(b)(ii), 501G(1)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) – paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14.1, 14.2, 14.3, 14.5, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
12 February 2020
BACKGROUND
The Applicant is a 35 year old man who is a citizen of the United Kingdom.
He arrived in Australia on 18 April 2014 with his wife, two step-children and biological daughter. The Applicant had been sponsored by an Australian employer to come to Australia to work as a chef. The Applicant also has a biological son who was born after the family’s arrival in Australia.
On 14 June 2018, the Applicant was sentenced in the District Court of Western Australia to a total term of three years and nine months imprisonment for the offences of
“(attempted) gained benefit by fraud” (three counts) and “gained benefit by fraud” (three counts).
In a letter dated 31 August 2018 (G48, page 380), the Applicant was advised that his Class EN Subclass 186 Employer Nomination Scheme visa (the Visa) had been cancelled under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act). The basis of the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months which he was serving on a full-time basis in a custodial institution.
The Applicant was advised that he could make representations to seek revocation of the decision to cancel his Visa (G48, page 381). In an application dated 3 September 2018 the Applicant requested revocation of the cancellation decision and made representations (G48, pages 56-88).
The Applicant summarised his reasons for seeking revocation as follows:
· I am married with four children, who live in Perth, WA
· I have made all attempts possible to rectify my crime.
· I have children that [sic] have a social and educational network here in Perth WA, that would have a detrimental effect on them if I was to be deported.
· My youngest child was born in Perth WA, and only knows Australia
· I speak to my family every day, and have regular visits from them, this distance between us, has led them to need counselling. If I were to be deported it would have a detrimental effect on their mental states.
· I have changed my way of thinking since my arrest.
· I have taken changes to my life so as to not find myself in the position I was in.
· I plead with you not to split up a family unit. Not for my sake, for the sake of my children and wife. Please.
Notwithstanding the Applicant’s representations, on 15 November 2019 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Visa cancellation decision (G4, page 15-26). This is the Reviewable Decision currently before the Tribunal.
The Applicant was notified of the Reviewable Decision in a hand delivered letter dated
19 November 2019 (G2, pages 7-8). The Applicant signed to acknowledge receipt of the Reviewable Decision on 20 November 2019 (G58, page 450).
On 20 November 2019, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable Decision (G1, pages 1-6). Therefore, the Applicant filed his application for review within the 9 day period prescribed by s 500(6B) of the Migration Act.
Subsection 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 20 November 2019, meaning that the Tribunal must hand down a decision with respect to this application by no later than 12 February 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 29 January 2019.
The Applicant appeared in person and was represented by Ms Graziotti. The Respondent was represented by Mr Gerrard.
The Applicant gave oral evidence and was cross-examined. The Applicant called the following witnesses:
(a)the Applicant’s wife;
(b)Registered Psychologist Dr Phil Watts, who is also an Adjunct Associate Professor in Clinical Psychology and Endorsed in Forensic Psychology (G42, page 357-358);
(c)the Applicant’s friend, Mr Khoo.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Applicant’s Statement of Facts Issues and Contentions (SFIC) dated
24 December 2019 (Exhibit A1);
(b)Applicant’s Bundle of Evidence filed on 24 December 2019 (Exhibit A2);
(c)
Applicant’s Supplementary Bundle of Evidence filed on 23 January 2020
(Exhibit A3);
(d)Applicant’s Reply to the Respondent’s SFIC dated 22 January 2020 (Exhibit A4);
(e)Respondent’s SFIC dated 13 January 2020 (Exhibit R1);
(f)
section 501 documents (G documents) numbered G1 to G58 comprising pages
1 to 450 (Exhibit R2); and
(g)Supplementary Relevant Documents numbered SG1 to SG2 comprising pages 451 to 590 (Exhibit R3).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(a) that the person passes the character test (as defined by section 501); or
(b) that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79) under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 79 can be found in paragraph 8 of Direction No 79, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted above, on 14 June 2018 the Applicant was sentenced in the District Court of Western Australia to a total term of three years and nine months imprisonment for the offences of “(attempted) gained benefit by fraud” (three counts) and “gained benefit by fraud”
(three counts). Consequently, the Applicant does not pass the character test under s 501(6)(a) and s 501(7)(c) of the Migration Act.The Applicant does not contest that he does not pass the character test
(Exhibit A1, paragraph [34]).
The Tribunal must therefore consider whether there was “another reason” why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
A summary of the Applicant’s criminal history records the following convictions in the District Court of Western Australia (Exhibit R2, G6, page 31; Exhibit R3, SG2, page 471-472; Exhibit A1, paragraph [22]; Exhibit R2, G7, page 47; Exhibit A3, page 66).
The Tribunal makes the following observations:
(a)Where the offence dates in the WA Criminal History differ from those in the Sentencing Remarks, the dates in the Sentencing Remarks have been used.
(b)The Tribunal notes that the WA Criminal History and the National Criminal History for the Applicant described each of his offences as attempted or actual “gained a benefit for another by fraud”. Also, the Sentencing Judge, Her Honour Sweeney DCJ, did not specifically state the names of the offences. Thus, although the offences have been described as gaining a benefit for another, the Tribunal notes that the fourth offence and the sixth offence involved the Applicant gaining or attempting to gain a benefit for himself.
Table of the Applicant’s Offending
Offence date
Result date
Offence
Penalty Imposed
14.12.2015
14.06.2018
(attempted) Gained a benefit for another by fraud; Criminal Code (WA); 409(1)(c) D
Imprisonment: 15 Months
Concurrent from 29.05.2017
18.12.2015
14.06.2018
Gained a benefit for another by fraud; Criminal Code (WA); 409(1)(c) D
Imprisonment: 5 Months
Concurrent from 29.05.2017
1.03.2016
14.06.2018
(attempted) Gained a benefit for another by fraud; Criminal Code (WA); 409(1)(c) D
Imprisonment: 5 Months
Concurrent from 29.05.2017
30.06.2016
14.06.2018
Gained a benefit for another by fraud; Criminal Code (WA); 409(1)(c) D
Imprisonment: 2 years 6 months
Cumulative from 29.05.2017
23.12.2016
14.06.2018
Gained a benefit for another by fraud; Criminal Code (WA); 409(1)(c) D
Imprisonment: 7 Months
Concurrent from 29.05.2017
19.03.2017
14.06.2018
(attempted) Gained a benefit for another by fraud; Criminal Code (WA); 409(1)(c) D
Imprisonment: 15 Months
Cumulative from 29.05.2017
The Applicant was sentenced at the same time as his brother, Dariush Mahmoodshahi. Additionally, with respect to the first three charges a friend of the Applicant and his brother named Peter Molyneux was a co-offender.
The first count (“(attempted) gained benefit by fraud”), involved the Applicant and his brother Dariush assisting their friend Peter Molyneux in making a fraudulent insurance claim by signing fraudulent documentation in support of the claim. The Sentencing Judge, Her Honour Sweeney DCJ, summarised the facts as follows (G7, page 34):
…count 1…is an attempted fraud which you both [the Applicant and his brother Dariush] face.
Mr Peter Molyneux is a close friend of you both from England and, indeed, Dariush, you went to school with him and you both completed your carpentry apprenticeship and then he moved to Australia a month after you arrived here and the two of you went into business together. But I gather from the materials that things had become quite tough; there was a downturn in the industry.
On 14 December 2015 he [Peter Molyneux] reported a burglary to police at his Mindarie home. He claimed he’d lost items to a total value of $440,000-odd. He [Peter Molyneux] lodged an insurance claim, which included fraudulent supporting documentation for goods of that value and that fraudulent documentation included affidavits, bills of sale and invoices which you, between the two of you, had signed.
Jahan, the amount of goods that your false documentation was supporting amounted to $162,241.
And Dariush, the amount of goods that your false documentation was supporting was $175,550.
But, of course, in a real way you both contributed to the attempt to get the whole amount of $444,815 and you’ve been charged accordingly. By providing him with false documentation for a large amount of property between you you helped support the entire claim and attempted to make it all look genuine. Fortunately, his insurance company, AAMI, suspected the claim and it was investigated and rejected. That is why that charge is an attempt.
Her Honour continued on to describe count two (“gained benefit by fraud”) and count three (“(attempted) gained benefit by fraud”), which involved the Applicant assisting his friend Peter Molyneux to make a second fraudulent insurance claim by signing fraudulent documentation. The Applicant’s brother was not involved in these counts. Her Honour stated (G7, page 35):
Count 2. In relation to this count, Jahan, you face this charge alone. Arising out of the same false burglary report your friend, Mr Molyneux, made a second insurance claim to Allianz Insurance claiming he’d also lost $24,200 in cash during the burglary. He said that was a payment for a job he’d just done for you and you gave him a fraudulent invoice confirming that his company had carried out building work at an address in Ocean Reef. You signed the invoice to confirm that you’d paid him in full.
Unfortunately, Allianz approved that claim and paid him the $20,000 they were liable to under his particular policy. So count 2 was a successful fraud.
Count 3. Moving to this charge which, again, only you, Jahan, face. On 1 March 2016 your friend, Mr Molyneux, made a false report of a burglary at an address in Connelly claiming multiple items had been stolen worth $20,889 and lodging a claim with his insurer, SGIO, for that amount. He supported his claim with fraudulent documentation and that included information you gave him which enabled him to make the documents look more authentic.
SGIO suspected the claim and referred it to an investigator and the investigator then contacted Mr Molyneux to get further information. At which point he balked and advise them that he no longer wished to pursue the claim. That is why that is only an attempt.
Count four (“gained benefit by fraud”) involved the Applicant and his brother.
In sentencing, Her Honour described this count as follows (G7, pages 35-36):
On 30 June 2016, you Jahan, reported a burglary to police at an address in Iluka and claimed that items worth $504,582 had been stolen. You made an insurance claim with your insurer, IAG.
This is a charge you both face as count 4 and this is a successful fraud. You supplied fraudulent documentation to support the claim and some of those documents were signed by you, Dariush, justifying $150,000 of the amount claimed.
On 10 August 2016 you, Jahan, received a cash settlement of $504,082. Obviously, you received enormous financial benefit.
Count five (“gained benefit by fraud”) involved the Applicant alone. Her Honour described this count as follows (G7, pages 36-37):
You face this charge alone. This is a successful fraud. On 23 December 2016 you reported to police that your sister-in-law[’s]…Mercedes Benz had been stolen from the Hillarys Boat Harbour car park.
The next day she lodged an insurance claim with RAC and RAC approved the claim and it was paid out to the amount of $46,870.64. And I understand that she beneficially received that money but it is not suggested she was a party to the offence. In fact, the car had not been stolen at all because you had agreed with a mate of yours, one Kevin Missan, that he would take possession of the car and hide it. He had the keys and the vehicle in a car park on West Coast Highway in Scarborough.
In late January 2017 police found the car in a car park about 200 metres from his house. I’m not in a position to know precisely what it was you intended, whether that car was going to be sold, whether it was going to be dismantled and sold for parts or whether you were hoping that you could just drive the car around and that would not be noticed. But one way or another it seems to me irresistible that some benefit was going to be obtained. Over and above that is the amount of the payout of $46,000-odd.
Count six (“(attempted) gained benefit by fraud”) involved the Applicant, his brother and Peter Molyneux. Her Honour described this count as follows (G7, page 37):
In mid-March 2017 you, Jahan, were on holiday in Bali but you were able to monitor your burglar alarm system and you reported that your alarm in your Iluka house had been activated. On 19 March 2017 you reported a burglary to police which was a false report, and you later claimed you’d lost items to a value of $737,959.80. I understand that in fact Mr Molyneux ransacked the interior of the house so as to give some colour to the claim.
The next day, Jahan, you made an insurance claim with IAL, your insurer, supplied fraudulent documentation to justify the payout, including fraudulent affidavits, bills of sale and invoices which had been signed by your brother, Dariush, and other people.
Dariush, the documents you provided justified and $195,931 worth of goods. But, of course, in justifying that substantial amount of the claim you’re also attempting to justify the whole claim to give the whole thing the flavour of legitimacy when it was false from start to finish. And, of course, you, Jahan, were attempting to justify the entire payout.
Her Honour summarised the benefits received by the Applicant as follows (G7, page 38):
…you personally received $504,082 from count to 4, you assisted Peter Molyneux to receive $20,000 in count 2 and [the Applicant’s sister-in-law] to receive $46,870 in count 5. As I’ve said it’s not suggested she was a party, but there was a payout. And you assisted Peter Molyneux in his attempt to receive a total of $465,704 from counts 1 and 3 and you attempted yourself to obtain a further $737,959 in count 6.
Paragraph 13.1.1(1)(a) of Direction No 79 specifies that violent or sexual crimes are viewed very seriously, but does not limit the range of offences that may be considered serious. In the Tribunal’s opinion, fraudulent offences can also be categorised as serious. The circumstances of the Applicant’s offences are not in the category of the most serious crimes (including violent or sexual crimes) that come before the Tribunal in these types of applications. However, the Applicant’s offences do involve deceptive and dishonest conduct to obtain or attempt to obtain large sums of money (for example, count four, which involved the Applicant obtaining $504,582, and count six, which, if successful, would have resulted in the Applicant obtaining $737,959.80). Accordingly, the Tribunal does regard the Applicant’s offences as being serious.
In sentencing, Her Honour referred to the serious nature of the Applicant’s offending
(G7, page 46):
… There can be no doubt you’ve engaged in most serious criminal behaviour. First to assist your friend to engage in what you obviously knew to be dishonest behaviour, and then inspired by his example, engaging in serious deceit yourself, purely to gain large sums of money.
The offending on the part of both you and your brother was premeditated. It involved effort and planning. It was sustained over time, and it was for financial gain. Both for your friend, Mr Molyneux, and for yourselves…
The amount of money you’ve personally gained is enormous, and the amount of money you attempted to gain is more enormous still.
Her Honour also referred to the impact of this type of offending on the community and the “seriousness of the offending” (G7, page 47):
And contrary to what it seems many members of the public may think, insurance companies are real victims, though they are companies. And when the company takes a hit, that means they increase the insurance premiums to all of us, so that we all have to pay more money for insurance because of people like you. So insurance companies are not fair game for dishonest people.
When you do fraud them, you make the rest of the community suffer by having to deal with constant hikes of insurance premiums. There is no question that this must be met with a term of imprisonment. And while the law obliges me to consider suspending the term and taking into account the mitigating factors, again, it simply could not be appropriate in light of the seriousness of the offending that is conceded on your behalf.
Her Honour’s remarks above are indicative of the serious nature of the Applicant’s offending. However, Her Honour’s views must also be evaluated in light of the remaining sub-paragraphs of paragraph 13.1.1(1) of Direction No 79, which provide further guidance to determine the overall seriousness of the Applicant’s offending.
Paragraph 13.1.1(1)(b) of Direction No 79 is not applicable because the Applicant has not committed any crimes of a violent nature against women.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or against government representatives or officials due to the positions they hold, or in the performance of their duties are serious”. The Applicant’s offences do not fall into either category.
As noted in the Table of the Applicant’s Offending, the Applicant was sentenced to custodial terms of imprisonment on 14 June 2018 (paragraph 13.1.1(1)(d) of Direction No 79). A term of imprisonment is generally imposed as a last resort and can reflect the serious nature of the offending. The maximum term that could be imposed for the attempted fraud offences was three years and six months, and seven years’ imprisonment for the fraud offences (G7, page 38). The Applicant was sentenced to a total effective term of three years and nine months, which was backdated to 29 May 2017 to take into account the time that the Applicant had already spent in custody. The Sentencing Judge, Her Honour Sweeney DCJ, stated that the Applicant would be eligible for parole after serving 22 and a half months of this custodial sentence. The Tribunal observes that Her Honour did not impose the maximum penalty, and noted that “there are decent chances of your [the Applicant’s] rehabilitating yourself and not reoffending” but considered that there was a need for general deterrence. Despite this, a term of three years and six months is nevertheless a substantial term of imprisonment in the circumstances. This custodial term of imprisonment, although less than the maximum, tends to suggest that the Applicant’s offending was serious, particularly as he had no prior criminal history.
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), prior to committing the offences, the Applicant did not have a criminal history. The Applicant committed the six offences between December 2015 and March 2017. The first three counts involved the Applicant providing documentation to assist Mr Molyneux to make fraudulent claims with no apparent gain for the Applicant. Count four involved the Applicant fraudulently obtaining insurance settlement of $504,582. Count six involved the largest sum, with the Applicant attempting to personally gain $737,959.80. The Tribunal considers that this tends to suggest a slight increase in seriousness.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant does not have a lengthy criminal history, and prior to being sentenced on 14 June 2018, had no prior convictions. He was sentenced for all six offences on the same day, and pled guilty at the first opportunity. At the time of his sentencing, the Applicant, together with his brother, had attempted to pay restitution to the insurance company to the value of $424,000 (G7, page 44-45). Although any legal proceedings place a burden on the resources of police, corrective services and the courts, the burden resulting from the Applicant’s offending is far less than many of the offenders who come before the Tribunal with lengthy criminal histories and numerous terms of imprisonment, breaches of court imposed orders and the like. Hence, although there would have been some burden on resources as a result of the Applicant’s offending, the effect cannot be regarded as cumulative.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on his incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention. This is not applicable to the Applicant.
On balance, the Tribunal finds that the nature of the Applicant’s offending is serious, noting however that it is not violent or sexual; that the offences are the Applicant’s first offences and that he attempted to mitigate his wrongdoing through an early guilty plea and paying restitution. The Tribunal therefore attributes a moderate level of seriousness to the Applicant’s offending. This weighs moderately against the revocation of the cancellation of his Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in
Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424 at [95],
as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.
Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated at [68] that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
The harm that could result if the Applicant is to reoffend in a similar manner (paragraph 13.1.2(1)(a) of Direction No 79) is financial loss to insurance companies, which in turn can result in members of the Australian community paying increased insurance premiums. Additionally, insurance fraud could have other flow on effects including delays in processing claims, or the incorrect rejection of insurance claims made by genuine claimants due to increased scrutiny and scepticism by insurance companies. This in turn could result in claimants experiencing frustration, stress and possibly anxiety. In a general sense, offences involving dishonesty and fraud can result in financial losses to companies, government agencies and members of the public, as well as increased insurance premiums. It can also have an emotional impact on human victims.
However, the nature of harm if the Applicant were to commit further similar offences is less serious than violent offences and crimes against women and children.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
No 79).
Prior to committing these six offences, the Applicant had not been convicted of any other offences in Australia or in the United Kingdom. Indeed, the Sentencing Judge described the Applicant as a “first [time] offender” who has previously been a “respectable law-abiding person” (G7, page 44). Her Honour also commented that “there are decent chances of your rehabilitating yourself and not reoffending” (G7, page 46). Her Honour further stated that, “I think your prospects of rehabilitation are probably reasonably solid in that you’ve been a law abiding, hard-working man for most of your life”; and that “[t]here are no guarantees, of course, but I think you are a person who is likely to learn his lesson and not repeat the same mistakes again” (G7, page 45). In the Tribunal’s view, these comments are suggestive of a low likelihood of the Applicant re-offending in the future.
Despite being assessed in prison as “not recommended for criminogenic programs…due to [being a] low risk of reoffending” (SG1, page 457), the Applicant completed numerous voluntary courses in prison, as well as vocational training programs and courses in budgeting and financial management (see, for example, G13, pages 106-136; Exhibit A2, pages 64-74); Exhibit A3, pages 13-41, 45-57 and 61-62). These included the two day “Life Skills” program and the Cognitive Brief Intervention Program (CBI Program) in September 2017 while he was awaiting trial. Program facilitators of the CBI Program gave the Applicant a positive report, noting that he was a “willing participant throughout all discussions and activities, often showing leadership within the program”, that he had a “solid level of understanding of the course content” and that he had successfully completed the program (SG1, page 452).
At the time of sentencing, Her Honour stated, “I can see that you’ve been doing everything you can in prison to use your time constructively and be a model prisoner…” (G7, page 45). In total, the Applicant estimated that during his time in prison and immigration detention he had completed approximately 50 to 55 courses, including 14 to 15 courses in financial management (transcript, page 25). When asked by the Tribunal why he undertook so many courses, the Applicant gave the following response (transcript, page 34):
In gaol I did all the budgeting courses, I did all the rehabilitation courses, although I was told not - I didn’t need to do them, I’d done something wrong. I’d made the mistakes to get myself in that position in gaol so although somebody else said “You don’t need to do a course” I believed I should do the courses because I’d learn something and I did. The cognitive skills course for example, I learned all about thinking and problem solving, thinking about your decisions, what the implications of them are. In Immigration detention I did the life skills course.
The life skills was more orientated around people with drug and alcohol - substance abuse but I still found them sessions useful because they taught you if you get an impulse to do something they taught you to think what the consequences of your actions. The on line [sic] courses, I did all the financial planning, budgeting, bookkeeping because I’d use all that for my everyday financial planning of our life, not because I’m - I did everything out of fear of not getting myself back into that position again. All the diploma courses I did because I wanted to progress in my new employment, the supply chain management course because that - I’m going into logistics job - hopefully going into a logistics job, all them courses are relevant for my employment.Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65]). In the Tribunal’s view, the above evidence of the Applicant is demonstrative of his acceptance of responsibility for, and insight into, his offending and his desire to rehabilitate himself.
The Applicant’s remorse is further demonstrated by the Applicant pleading guilty to the offences at the first opportunity. Her Honour stated during sentencing that this demonstrated “an acceptance of responsibility and a willingness to allow justice to take its course” (G7, page 43). Further, the Applicant gave evidence that he did not apply for bail and pled guilty at the first opportunity because “it was time to own up to what I had done”. He described his reasoning at the time as, “I know what I did” and “I want to accept responsibility” (transcript, page 21). Her Honour stated that: “Over and above your plea I consider you are genuinely remorseful and terribly ashamed of your dishonest behaviour…” (G7, page 43).
In his evidence at the hearing, the Applicant gave evidence that he was ashamed and embarrassed by his offending. He was able to identify the factors that contributed to his offending, including believing that no other choices were available to him at that time.
At the time of the first two offences the Applicant was in hospital recovering from a stroke (transcript, page 11). At the time of the third offence he was in hospital following the birth of his youngest child when Peter Molyneux approached him. At the time of the fourth offence, the Applicant was in significant financial difficulty as a result of setting up a new restaurant and encountering substantial additional contingencies and costs (transcript, pages 22 and 27). Although the Applicant experienced health issues at the time of the first three offences in particular, he did not attempt to use his health as an excuse to minimise his offending; rather he accepted responsibility for the decisions that led to his offending.
The opinion of Dr Watts was that the Applicant did not view his stroke as significant and accordingly that the Applicant did not seek to rely on it as an excuse to justify his offending (transcript, page 39). Dr Watts was, however, of the opinion that the type of stroke suffered by the Applicant would have affected the frontal lobe of the Applicant’s brain which is associated with, and may have affected his, judgement and emotional regulation (transcript, page 39). The Tribunal accepts the evidence of Dr Watts and finds that the Applicant’s stroke was likely to have affected his judgement which would have been a contributing factor to his offending.
Relevantly, the evidence of Dr Watts was also that the Applicant had expressed remorse and shame about his offending, which in Dr Watts’ opinion, was genuine (transcript, pages 39-40). The Applicant was remorseful for the detrimental impact that the offending had on his wife and children, and he was able to articulate the impact on them which including them struggling emotionally and financially (transcript, pages 22 and 26-27).
The Applicant demonstrated his awareness of the impact of his offending on the broader community, including increased insurance premiums which could detrimentally impact struggling families (transcript, pages 23 andj 27). The Applicant also articulated the personal losses suffered by himself and his family as a result of his offending. In the Tribunal’s opinion, the Applicant’s appreciation of these losses would likely have a deterrent effect (Exhibit A2, pages 33-34, paragraph [86]):
I have lost so much due to my offending. I have lost the replaceable time and memories with my family, my children have suffered a great deal, my wife has struggled to cope emotionally and financially. I have been imprisoned for the first time in my life, which scared me so much. I lost my mother and was unable to attend her funeral. I lost my dignity, my self-respect. I not only repaid the money I obtained fraudulently, but I have lost so much more as a result. The restaurant business that I put so much into, was closed just to allow the lease to be terminated. Our home, cars, money, personal possessions, even down to surrendering both mine and my wife’s wedding rings to the courts. I have literally lost so much more than I gained, and this serves as a constant reminder that nothing I did had any benefit at all. I have no motivation to reoffend, absolutely none. Every bit of motivation I have is to never reoffend.
Additionally, at the time of sentencing Her Honour, Sweeney DCJ, noted that the Applicant had made efforts by way of restitution to the value of $424,000 through the sale of his home and the surrender of items of jewellery (G7, pages 44-45). Her Honour commented that (G7, page 45):
… the efforts to make good are significant and mitigatory and that applies equally to you both [the Applicant and his brother].
That restitution no doubt represents an attempt to improve your position with this court. There’s nothing wrong with that, but it’s also solid proof of remorse and a desire to lessen the financial impact on the victim company and it is meaningfully mitigatory.
The Tribunal finds that the Applicant’s embarrassment, remorse and regret were sincere.
This was, in the Tribunal’s view, demonstrated by his early plea of guilty and willingness to accept punishment, as well as his attempts to restore some of the harm that he has done by paying restitution of approximately 85 percent of the money he received. The Applicant has displayed insight into his offending, as well as the impact of his offending on his family and the broader community. The Tribunal is of the opinion that these insights may assist in reducing the likelihood of the Applicant reoffending.
Further evidence of the Applicant’s rehabilitation is demonstrated by his “excellent prison conduct” (SG1, page 459). In August 2017, approximately two months into his term of imprisonment at Hakea Prison, the Applicant became a peer support worker and also held the trusted position of assisting with the intake of prisoners in the reception area of Hakea Prison (G16, page 174; see also Exhibit A3, pages 8-9; transcript, page 25). A letter of reference for the Applicant from a Senior Officer at Hakea Prison stated that, “I noted he was extremely remorseful of his actions that led him to his imprisonment and made every effort to make amends”. The Officer further stated, “I have found him to be honest, reliable and energetic in his duties and of good character and only wish his future is not damned by the action that has led him here” (G16, page 174).
The Applicant was granted parole by the Prisoners’ Review Board (PRB) at his first opportunity for parole. The Parole Review Report for the Applicant stated: “Recommend release to parole in view of viable parole plan, good family support, excellent prison conduct…”. The PRB ordered the release of the Applicant on parole from his earliest eligibility date. The parole period was from 14 April 2019 until the expiry date of 28 February 2021, being the sentence maximum for the Applicant. The PRB stated the following reasons for making the parole order (G25, page 226):
The Board decided that your release would present an acceptable risk to the safety of the community due to;
1. you being screened as a low risk of reoffending and therefore not meeting the criteria for inclusion in treatment programmes.
2. Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
3. You having no prior criminal history.
4. The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
5. Your parole plan which includes confirmed suitable accommodation, confirmed employment and support from family.
Additionally, the PRB granted release on the basis that the Applicant would be released into the Australian community, and not on the basis that he would be released into immigration detention. This may also be another indication that the PRB perceived the Applicant’s risk to the safety of the community to be low.
The PRB imposed relatively few additional conditions on the Applicant, which is a further indication of their view that the Applicant posed a low risk. The additional conditions of parole were (G25, page 226):
1. To attend programmes and counselling as directed.
2. To immediately engage in employment, training, or job seeking and remain engaged for the duration of parole.
3. Not to change address without the prior approval of the Community Corrections Officer.
The Tribunal notes that the Applicant’s parole period does not expire until 28 February 2021. Therefore, if he is released into the Australian community he will continue to be under supervision until the expiry of his parole. This is likely to be an additional protective factor which may reduce the likelihood of the Applicant reoffending and assist in his reintegration into the community.
Psychologist Dr Phil Watts gave evidence at the hearing with respect to his independent expert report in which he gave an assessment as to the Applicant’s likelihood of reoffending. In his report, Dr Watts stated that (G42, page 356):
23.In my assessment, Mr Mahmoodshahi shows nothing of an antisocial nature, rather, the offending appears to have been a serious error of judgement in a combination of acute stress, which had significant consequences.
24.I note that Mr Mahmoodshahi voluntarily repaid as much as possible of the money to the insurance company. This included selling his house, his cars and other items. I understand that he has paid back $420,000, with about $80,000 remaining. Mr Mahmoodshahi has looked at paying back the balance.
25.The combination of his remorse, awareness, repaying the debt and learning to share problems with his partner rather than keeping things in isolation, would make the likelihood of any further reoffending negligible…
(Emphasis added.)
Dr Watts concluded his report by stating: “The likelihood of reoffending is low and his ability to make a positive future contribution relatively high” (G42, page 357).
In the following exchange from his evidence at the hearing, Dr Watts expanded on why he thought the Applicant was a low risk of reoffending (transcript, pages 40-41):
COUNSEL:What kinds of characteristics or personality traits do you generally see in repeat offenders of like, white collar crimes or the kinds of crimes that the applicant committed that involved dishonesty?
DR WATTS:Yes, no, financial crimes or fraud crimes, the most common – the two most common motivators are where there’s a strong need for money, so gambling or drugs. So, they’re the really common – where people have got an addiction under the surface and then, the next sort of situations are more where it’s sort of, more on the opportunistic type level of offending, where something allowed an opportunity to come up, rather than something which was a well-considered type approach or a necessity.
COUNSEL:Would you say that the applicant’s behaviour fell into the second category?
DR WATTS:I saw him as – I found no evidence of any sort of addictions. There was some financial problems happening in his life, but the sequence – at least from what I could glean, I haven’t seen the original statement of material facts – but from the pre-sentence reports and my discussion with him, it would seem very much to be opportunistic, in the sense, the first one, he helped somebody else and made particular gains and then from there, got the idea and then when an opportunity arose in his own life, he took it and – but acted in a fraudulent way to make it happen and then he tried to repeat that at a later date. So, I see it as [ndistinct words] in that circumstance, there was debt, there was – had problems in his life. But it wasn’t that he was driven – specifically set out to do it, I think the circumstances led him to this pathway. So, I see it in the opportunistic category.
COUNSEL:In your opinion, does the applicant fit the profile of a person who is likely to reoffend in this way?
DR WATTS:Well, both the combination of the personality assessment and my discussion with him, I didn’t see the sorts of beliefs and attitudes which are associated with somebody who’s likely to keep doing it and both the Personality Assessment Inventory and my discussion with him, indicated that he was likely to be quite treatable and that treatment included dealing with emotions earlier. He discussed talking about issues in a way which he didn’t before. In the process of conducting this assessment, the impact on his has [sic] been huge, you know, it’s been a criminal offence, it’s impacted upon his family, it has been a – you know, his wife, his children – and it’s also caused a split in the extended family. So, there’s been a very, very strong negative outcome, which that in itself would probably be a significant wake up. But in addition, as I say, there’s the sense of shame and the impact upon his own functioning, I think is highly significant. So, I’d say he’s a low likelihood reoffender.
COUNSEL:That was going to be my next question. I mean, your report appears to conclude that the risk of him reoffending is negligible. Can you please just explain how you came to that conclusion, if you haven’t already answered it in the last question?
DR WATTS:Well, I think I’ve probably covered in my previous answer.
That’s what I would – you know, I suppose, I don’t [indistinct words], it’s fairly rare for me to say that I see someone that’s a negligible likelihood, but in this particular case, there just weren’t features which looked as – you know, as risk factors.
(Emphasis added.)
The Applicant acknowledged having some mental health issues at the time of the fourth offence. In 2016 the Applicant was electrocuted when he touched the oven in his home kitchen, resulting in nerve damage to his right shoulder and a subsequent diagnosis of post-traumatic stress disorder (PTSD). The Applicant described his mental and physical state at the time he committed his offences in the following exchange (transcript, page 22):
COUNSEL:Do you think you were affected by any medical conditions at the time you committed any of your offences?
APPLICANT: I wasn’t well. I wasn’t well. I had a stroke then I had a car cash, then I got electrocuted, all within months of each other. Physically I wasn’t well. I was still working all these hours in the kitchen.
I was having my own - I was seeing the psychologist about the issues I was having regarding the electrocution. I wasn’t sleeping. I was getting so many different medications from the GP.
It wasn’t until I listed them all in my statement that I thought - golly - well, I got the printout from the doctors of everything that I was prescribed and I looked at the list and no wonder I was - my head was messed up, the amount of tablets I’d taken.
In sentencing, Her Honour Sweeney DCJ stated that (G7, page 46):
The highest risk factor I see for you is ongoing depression and anxiety, and of course now you have the consequences of your criminal behaviour to add to that overall picture. You will need to address those mental health issues to avoid in engaging in more self-defeating behaviour in the future.
The Applicant undertook treatment with a psychologist for his PTSD up until he entered prison (transcript, page 15-16) and he stated in his evidence that he would continue this psychological counselling upon release. He also undertook frequent counselling in prison, and given his trusted position working in the prison reception, he was located near the counsellors and had frequent access to them outside of his weekly counselling session (transcript, pages 25-26). The Applicant stated that his counselling in prison explored a range of issues including his PTSD, his offending behaviour and its consequences and financial planning and management (transcript, pages 34-35). The Applicant continues to take prescribed medication for anxiety and depression, as shown in his IHMS Medical records (Exhibit A3, page 12). Additionally, the Tribunal notes Dr Watts’ evidence (transcript, page 38) that:
There was no evidence of any major mental health issue. There was no evidence of things like schizophrenia or bipolar disorder. There was some sort of, mild anxiety. There was some trauma…
The steps taken by the Applicant to pursue treatment and counselling, together with the Applicant continuing to take his medication and being aware of his treatment options upon release, tends to indicate that the Applicant’s mental health issues are under control.
The Tribunal also notes that the Applicant has substantial support from friends in the Australian community who are aware of his offending, noting numerous letters of support (Exhibit A2, pages 51-54, 61-63 and 121-145). These friends include Mr Arne, Mr Khoo, Mr Paskett, Mr Evans and Mr Joyce (see Exhibit A1, paragraphs [136]-[142]). Mr Khoo, who gave evidence at the hearing, has offered to pay the remaining restitution for the Applicant to help him to rebuild his life without having a debt to bare, and for the Applicant to repay him at a later stage by assisting him in the expansion of his catering business (Exhibit A2, page 54; transcript, page 89). The Applicant has an offer of employment as a Warehouse Logistics Coordinator if he is released into the Australian community (transcript, page 26; A2, page 46). In the Tribunal’s opinion this would be a positive and meaningful use of his time and may also act as a protective factor which may reduce the likelihood of his reoffending. As well as having prosocial supports in the community, the Tribunal notes that the Applicant has no contact with his co-offenders (his brother Dariush and Peter Molyneux), and his evidence is that he will not have any contact with them in the future (Exhibit A2, page 33, paragraphs [83]-[85]). This is also likely to be a protective factor moving forward (transcript, pages 21-22).
The Applicant has strong support from his wife whom he continues to be in a relationship with. Since her husband has been in prison and immigration detention, the Applicant’s wife has struggled financially and emotionally bringing up their four children by herself. When the Applicant went into custody, she had sole responsibility for supporting herself and the children, obtaining a job at a service station and working nights, and undertaking TAFE studies in order to improve her future employment prospects. Previously the Applicant had organised their family’s finances, with his wife having no knowledge or involvement in income and expenditure. At the hearing, the Applicant and his wife both gave evidence about their improved communication with respect to financial matters, and their closer bond in general, since the time of the Applicant’s convictions. Both stated with certainty their plan that financial management of the household will be jointly undertaken in the future. They articulated how they would live modestly and within their means (see, for example, Exhibit A2, page 107, paragraph [30]; Exhibit A2, pages 29-30, paragraphs [51]-[55]). The following exchange is an indication from the Applicant as to the reassessment of his values (transcript, page 27):
COUNSEL: Has this experience made you reconsider your values?
APPLICANT: Yes. I value - before, I valued money. I’ve got no - money doesn’t mean anything now. All - I was success - I feel successful today because I’ve got four kids and a wife that are healthy, they don’t need anything and they’re happy. If I’d have realised that three years ago I would not be sitting here today. And I value what I’ve got and what I’ve got is my family, not money or material things - cars or being your - having your own business, anything like that.
The Tribunal also notes that the Applicant is now unable to obtain insurance.
The Applicant’s counsel submitted that this may prevent him from committing insurance fraud in circumstances where he is the policy holder (Exhibit A1, paragraph [126]). However, in four of the Applicant’s six offences the Applicant was not the policy holder. The Tribunal is not persuaded by the argument that the Applicant will be unlikely to commit further fraudulent offences because it will be “practically impossible”
(A1, paragraph [126]). Rather, the Tribunal is persuaded by the other evidence before it, including evidence of the Applicant’s remorse and rehabilitation, including the evidence of Dr Watts, that there is a low to negligible likelihood of the Applicant reoffending.
In summary, the Tribunal finds that the Applicant has shown genuine embarrassment, remorse and insight into his offending behaviour, including its impact on his family and the wider community, and that he has changed the beliefs and attitudes which contributed to his offending behaviour. He pled guilty at the first opportunity and did not attempt to minimise his behaviour. His mental and physical health issues at the time of the offending, which were likely to have been a contributing factor, are now under control. He attempted to rectify his offending by paying restitution to his insurer. He has undertaken counselling and numerous programs in order to facilitate his rehabilitation, despite being assessed as a low risk and as not requiring treatment intervention in prison. His rehabilitation is further illustrated by his excellent behaviour in prison and the trusted positions he was given. He has numerous prosocial supports within the community which the Tribunal considers may assist to reduce the likelihood of his offending, including his wife and a network of friends who are willing to support him, including financially. He also has an offer of employment. The Applicant’s insight into his offending, his beliefs and attitudes and his personal circumstances are now different to those which existed at the time of his offending. The Applicant has suffered detriment as a result of his offending, including the loss of his business, home and personal possessions as well as being removed from his family and facing the fear that his family will be split by his deportation. When added to the prison assessment of the Applicant as a low risk of reoffending, and the evidence of Dr Watts that the Applicant’s likelihood of reoffending is “low” to the extent that it is “negligible”, the Tribunal finds that there is a low to minimal likelihood of the Applicant reoffending should he be given a chance to be released back into the Australian community.
Although the Tribunal acknowledges that the harm which can result from fraudulent offending can range from minimal harm to serious harm, based on the above finding that there is a low to minimal risk of the Applicant reoffending, this consideration weighs only slightly against the revocation of the decision to cancel the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a
decision-maker must consider when determining the best interests of a child.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant and his wife have four minor children who are Australian citizens, namely a: 16 and a half-year-old daughter, 15 and a half-year-old son, nine year-old daughter, and four year-old son (Exhibit A1, paragraphs [2] and [11]). The Applicant’s evidence at the hearing was that prior to his imprisonment he had close relationships with all of his children, and he maintained those relationships to the best of his ability during his imprisonment and detention.
The eldest two children are the Applicant’s step-children, being his wife’s children from a previous relationship. However, the Applicant regards them as his children and the children regard the Applicant as their father. The Applicant’s wife stated that, “I had two children from a past relationship who Jay has treated as his own children since we began our relationship” (Exhibit A2, page 104, paragraph [3]). The Applicant has been a father to the eldest two children since approximately 2009 when he met their mother. They do not have contact with their biological father (transcript, page 74; Exhibit A2, page 106, paragraph [23]). Thus, the Tribunal regards the relationships between the Applicant and his two step-children to be parental. This is accepted by the Respondent (transcript, page 107).
The Applicant’s wife stated that the Applicant was involved with each of the children’s day-to-day care before he went to prison, as much as he was able to whilst working long hours. All of the children have visited and spoken to him regularly throughout his imprisonment and detention, visiting their father weekly throughout his entire imprisonment and detention. In prison the Applicant would also phone and write to the children. In immigration detention, the Applicant also frequently speaks to the children by face time (transcript, page 30).
It was submitted by counsel for the Respondent that if the Applicant was returned to the United Kingdom, his wife and children could choose to return with him, given that they (except for the youngest child) were born in the United Kingdom. Counsel for the Respondent also explored the option of the Applicant’s wife remaining in Australia with the two older children whilst they completed their studies (as noted in Dr Watts report as a possible option that the Applicant and his wife had discussed – see G42, page 357, paragraph [30]), and then relocating to the United Kingdom with or without the older two children who would be over the age of 18 years. The submission was, in summary, that any decision for the eldest two children, or indeed all of the children, to remain in Australia was a choice for the family, and although it was a difficult choice, it was nevertheless a choice (see, for example, transcript, page 107). In other words, the submission was that the deportation of the Applicant would not necessarily result in the Applicant’s wife and children being separated from him; but rather, any separation would be a matter of choice for the family. However, the Applicant’s wife and three oldest children have recently become Australian citizens, and his youngest son is an Australian citizen, having been born in Australia. In the Tribunal’s opinion, it is unreasonable to expect Australian citizens to make a decision to move to another country in order to be with their husband and father.
The evidence before the Tribunal indicates that the deportation of the Applicant would result in the Applicant’s separation from his wife and children. This evidence includes the evidence of the Applicant and his wife that the Applicant’s eldest two children have steadfastly refused to relocate to the United Kingdom, as well as the evidence of these children (discussed below). The Applicant’s wife gave evidence at the hearing that the two eldest children have even made plans with their grandparents in the United Kingdom (the Applicant’s wife’s parents who do not support their forced removal to the United Kingdom) to obtain money for their airfares back to Australia if they are forced to relocate to the United Kingdom by their parents (Exhibit A2, pages 37-38, paragraphs [114]-[116]; transcript, pages 29,67,75).
Counsel for the Respondent submitted that there was some inconsistent evidence regarding whether the eldest two children would relocate to the United Kingdom, referring to the report of Dr Watts (G42, page 357) which stated that “… in discussions with his wife, if he were deported, essentially, for the interests of the children, the children and his wife would continue to live in Australia until the two older children had finished their schooling”. When asked about this at the hearing, Dr Watts was unable to recall,
even with reference to his notes, whether this was a definite view of the Applicant.
Dr Watts stated that this was because his report was for the predominant purpose of assessing the risk of reoffending, and not the impact that deportation of the Applicant would have on his family (transcript, pages 42-43).
What is, however, before the Tribunal is the very strong evidence of the Applicant and his wife, which the Tribunal regards as credible, as well as the Applicant’s eldest two children, that they have steadfastly refused to relocate if their father were returned to the United Kingdom, and that they would return to Australia at the first opportunity if this were the case.
16 and a half-year-old daughter
As noted above, the Tribunal finds that there is a parental relationship between the Applicant and his daughter (paragraph 13.2(4)(a) of Direction No 79). She does not have contact with her biological father, and the Applicant has been her father since she was approximately 6 years of age. In a statement dated 25 November 2019, the Applicant’s daughter wrote that, “The relationship I have with my dad… is that I am his stepdaughter, however, I do not call myself his stepdaughter, I am his daughter” (Exhibit A2, page 111, paragraph [1]). The statement of the Applicant’s daughter indicates that she has a close and loving relationship with her father, and she states that it is very upsetting for her to see her father in immigration detention.
The Applicant’s daughter will turn 18 in approximately 18 months’ time. In a written statement dated 24 December 2019 (Exhibit A2, page 36, paragraph [109]) the Applicant stated that his 16 year old daughter:
… is my eldest and I am now able to speak to her as an adult. I attempt to treat her as a grown-up young lady, and I respect her and thoughts [sic] on different matters. Our bond has got better in the recent years with all that has gone on. I believe however, that she is at the age at the moment where she desperately needs her father to be with her. I speak to [the Applicant 16-year-old daughter] on the phone daily and we are very close…
In her written statement, the Applicant’s daughter wrote that (Exhibit A2, page 112, paragraph [14]), “My dad has so much to offer in way of love and support to his family.” The Tribunal considers the Applicant to be a loving father who has a close relationship with his children (including his daughter). This indicates to the Tribunal that he is likely to be a positive role model to his daughter in the future (paragraph 13.2(4)(b) of Direction No 79).
The Applicant’s conduct has not directly had a negative impact on his daughter (paragraph 13.2(4)(c) of Direction No 79), however it could be said that it has indirectly impacted on his daughter because she finds it very upsetting to see her father in detention (Exhibit A2, page 111, paragraph [8]). If the Applicant were to reoffend in the future,
it would undoubtedly have a negative impact on his daughter who will again face the prospect of being separated from her father.If the Applicant were to be removed from Australia, the effect of any separation from his daughter would likely be detrimental to her (paragraph 13.2(4)(d) of Direction No 79). As noted above, the Applicant’s daughter is an Australian citizen, and should not be required to make the decision to leave Australia in order to be with her father. The Applicant’s daughter has in any event stated that, “My family and I will not relocate to the UK. It was very hard for us to move to Australia. I have friends and a boyfriend here in Perth, to even contemplate moving is not an option for me” (Exhibit A2, page 112, paragraph [13]). As has just been noted, in her statement of 25 November 2019, the Applicant’s daughter has stated that she will not relocate to the United Kingdom. Although the Applicant could maintain contact with his daughter if he were returned to the United Kingdom and she remained in Australia in other ways, including by telephone, Skype and email, this would not be the same as the Applicant being physically present and having ongoing daily parental involvement in her life.
Subsequently, two decisions of the Federal Court adopted slightly different approaches to the interpretation adopted by Mortimer J in YNQY. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs
[2019] FCA 500 (FYBR).
In DKXY, Griffiths J stated that it was not “inevitable” that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]).
His Honour explained, at [31], that:Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction…
(Original emphasis.)
In summary, Griffiths J was of the view that “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant’s circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community’s expectations would weigh against revocation.
On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach,
which appears to be more consistent with Mortimer J’s approach in YNQY:It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
Although Perry J referred to the statement of community expectations in the Direction to be a “norm” to be applied in “most cases”, it was not clear when circumstances would justify departure from that norm.
The Full Court of the Federal Court in FYBR v Minister for Home Affairs
[2019] FCAFC 185 (FYBR (FC)) considered the approach adopted by Mortimer J in YNQY. The Full Court’s decision was accurately summarised by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman), at [162]-[166], as follows:162. On 24 October 2019 the majority of the Full Court of the Federal Court (Charlesworth and Stewart JJ; Flick J dissenting) in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) upheld the decision of Justice Perry in FYBR. Importantly, the Court essentially agreed with the approach in YNQY and accepted Justice Mortimer’s characterisation of this consideration as a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC), [at 61],
per Charlesworth J; see also Stewart J [at 89]).163. Again as noted above, while this case concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court’s consideration of the issue of “community expectations” is directly applicable to paras 6, 8 and 13.3 are relevant to this application.
164. While there is some difference in the approach to the question of construction of the relevant clauses, the majority Justices in FYBR (FC) agree that it is not for a decision-maker to make his or own her own assessment of the community expectations and to give that assessment weight as primary consideration but to identify the Government’s view about community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker’s discretion, taking into account all the primary and other considerations (Charlesworth J at [73]-[74]; Stewart J at [93] and [103]).
165. In FYBR (FC) Charlesworth J, held that (at [67]):
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J... It is not for the decision maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day with respect of its subject matter.
166. Justice Stewart held, in similar terms (at [89] and [91]):
... The government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one, or even necessarily dominant, set of community expectations in this field....
The above contextual factors lead to 2 guiding considerations to the proper construction of Direction 65. First, “community expectation” as expressed normatively” I watched the government says they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the government do not speak to the outcome of any particular case – they are to be understood and applied normatively.
167. Both majority Justices make the point that, as a primary consideration, “community expectations” are to be taken into account along with other factors to inform a decision-maker’s exercise of discretion. It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable (see Charlesworth J (at [74]), Stewart J (at [91]-[93]).
168. Justice Charlesworth notes that it is necessary to determine the content of the deemed expectation not by reference to some factual inquiry but by reference to the paragraph itself. The task of the decision-maker is to identify the government view of community expectation and to have due regard to it (at [74]). Her Honour notes that the paragraph (at [73]):
Does not purport to preclude the decision maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision maker must necessarily do. The clause implicitly recognises that the decision-makers assessment as to whether or not the visa should be granted may differ from the expectations of the Australian community, as the government deemed those expectations to be.
169. Her Honour goes on to note the paragraph (at [75]-[79]):
75.Should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visas applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration.
...
79. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such cases, the decision maker would depart from the relative ascription of weight for which
cl 8(4) “generally” provided, as he or she is permitted to do.
170. Justice Stewart summarises the “community expectations” as expressed in the Direction as follows (at [100]):
Non-citizens will obey Australian laws while in Australia;
It may be appropriate to refuse a visa application were [sic] noncitizen has breached, or where there has is an unacceptable risk that they will breach, the expectation that they will obey the law or were [sic] they have been convicted of offences in Australia or elsewhere;
In a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted the visa...
His Honour goes on to state that (at [101]):
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
171. As noted above, although the Justices were considering the provisions with respect to visa refusal their comments are, in the Tribunals view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).
(Emphasis and footnotes omitted.)
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will in most cases weigh in favour of refusing to revoke the cancellation decision.The Tribunal has found that the Applicant’s offences were of a moderately serious nature (see discussion above regarding the first primary consideration). The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 states that, “The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.” Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia.
The Tribunal has also had regard to the principle in paragraph 6.3(5) of Direction No 79, which in part states that “Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time”, noting that the Applicant arrived in Australia in April 2014 and committed his first two offences in December 2015.
The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC),
together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would weigh against the revocation of the decision to cancel the Applicant’s Visa.In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the moderately serious nature of the Applicant’s offending and the low to negligible likelihood of his reoffending. The Tribunal has balanced these considerations against the other considerations which weigh in the Applicant’s favour. Specifically, these are the best interests of the Applicant’s four children, the strength, nature and duration of the Applicant’s ties to Australia (particularly the detrimental effect of the cancellation decision on the Applicant’s wife and children who are Australian citizens) and the hardship the Applicant would face if he were returned to the United Kingdom (particularly in light of his permanent separation from his wife and children if he were to return). The Tribunal therefore finds that this consideration weighs slightly against the revocation of the decision to cancel the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.
These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction No 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
As noted above, the Applicant arrived in Australia on 18 April 2014 when he was 29 years old. His first two offences occurred in December 2015, within a short time of his arrival in Australia.
The Applicant has, however, made positive contributions to the community by making and distributing free meals to homeless people in Northbridge on a weekly basis prior to his imprisonment. When the Applicant established his own restaurant, he hosted two separate charity evenings to raise money for the Smith Family. He also gave homeless people free lunches every Tuesday at his restaurant. This was confirmed by the Applicant’s friend, Mr Evans, who said the following in a written statement (Exhibit A2, page 121, paragraph [8]):
Jay also opened his own restaurant in Currambine, where he would allow the homeless to attend on a Tuesday lunch time to have a good meal, all free of charge. Unfortunately this had to stop when Jay was arrested and the restaurant closed. However, prior to his arrest, I helped him on several occasions, by helping him drive one of his cars to the city and pick guys up and drive them back up to Currambine, so they could attend the lunches, and then drop them back off again. Jay was very charitable, and I am sure he will continue to be if released back to his family and the Australian community. Jay did so much good for the community, and I know he has so much more to offer.
The Applicant’s friend Mr Joyce also referred to his charity work in a written statement (Exhibit A2, page 136, paragraph [15]). The Applicant also volunteered as a referee for his son’s soccer team on Sunday mornings (Exhibit A2, page 36, paragraph [110]).
There are numerous letters in strong support of the Applicant from friends in the Australian community who are aware of his offending. These letters are indicative of the Applicant’s close ties to the Australian community (see, for example, Exhibit A2, pages 121-145).
The Applicant’s wife and children are now Australian citizens. As discussed above, his wife and two eldest children in particular have expressed a strong desire to remain in Australia, and indeed the two eldest children are refusing to return to the United Kingdom, as is the Applicant’s wife. The Tribunal accepts the evidence of the Applicant, his wife and two eldest children that if it affirms the Reviewable Decision, the Applicant will return to the United Kingdom alone, and that he would be physically separated from his wife and children who will not return with him. This will have a very detrimental effect on the Applicant’s wife and children.
The substantial emotional detriment that the Applicant’s children are likely to suffer has already been considered in detail above in the section on the best interests of minor children. The Tribunal also finds that if the Applicant were required to return to the United Kingdom it would also have a seriously detrimental impact on the Applicant’s wife. It was evident at the hearing that the imprisonment and detention of the Applicant had taken a financial and emotional toll on the Applicant’s wife. Whilst giving evidence at the hearing, she was visibly stressed and could not seem to contemplate how she would cope if the Applicant were to be returned to the United Kingdom. The following exchange is relevant (transcript, page 75):
COUNSEL:What impact would your husband being removed from Australia have on each of your children if the children stayed here?
APPLICANT’S WIFE: Well it would have a negative impact. Emotionally, physically, financially. Just in every way possible. It would just [not] be good for any of them or myself.
COUNSEL: How would it be difficult for you?
APPLICANT’S WIFE: Well because it’s really hard raising four children alone.
So financially it is hard. Mentally it’s hard. Physically it’s hard.
The Applicant’s wife also stated the following in a statutory declaration dated 24 December 2019 (Exhibit A2, page 106):
27. In terms of what would happen to our family if Jay [the Applicant] was not allowed to stay in Australia - our priority is to be a family unit, and for the kids to have the best life possible for them. The two eldest children have categorically told me they will not return to the UK. They both are firmly settled here and have plans for their future here. My daughter [name omitted] even told me she would ask her boyfriend’s parents to become her guardians. I cannot leave any of my kids behind, particularly when they are all under 18.
28. When Jay went to prison, we lost not only his presence and support in our lives but financially we lost everything. The easiest thing for me to do at that time would have been to pack up and return to the UK. But I didn’t, I fought to stay here.
I worked nights for two years, which nearly killed me, while taking care of the kids during the day. I did this because this is where we want to be. I do not want to and could not return to the UK, especially after we have fought so hard to be here and the kids are settled here.
As discussed above, counsel for the Respondent submitted that it was a choice that the family would be required to make as to whether they would be separated or not if the Applicant were to be returned to the United Kingdom. The Tribunal accepts that the Applicant and his wife are trying to make the best life possible for their children and that it is their firm belief that the children’s best interests are served in Australia. It is not reasonable to expect the Applicant’s wife to return to the United Kingdom, especially now that the Applicant’s wife and children are Australian citizens, and when the two eldest children are refusing to relocate back to the United Kingdom. The Applicant’s wife expressed a strong view that she would not return to the United Kingdom, and that in any event, she would not leave any of her children behind in Australia. In the Tribunal’s opinion, Australian citizens should not have to make a choice to move to another country in order to be with their father and husband, even if it is the country of their birth. It would also be detrimental to the Applicant’s wife to require her to make choices which may result in separation from two of her children.
In summary, although the Applicant commenced his offending within a relatively short time of coming to Australia, he did make positive contribution through his charity work during his time in Australia. His ties to Australia are very strong in that if he is returned to the United Kingdom he faces permanent separation from his wife and children who are Australian citizens. The Tribunal finds that the Applicant’s ties to Australia are strong, and that this consideration weighs strongly in favour of the revocation of the decision to cancel the Applicant’s Visa.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 states that:
(1)Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has an outstanding amount of restitution owing to his insurance company in the sum of approximately $80,000. There was a divergence of opinion between the parties as to whether a decision not to revoke the cancellation of the Applicant’s Visa may have an impact on Australian business interests, specifically the interests of the insurance company to whom the restitution is owed (paragraph 14.3(1) of Direction No 79).
As noted above, if the Applicant is permitted to remain in Australia, his friend, Mr Khoo has offered to pay the restitution. In his evidence at the hearing, Mr Khoo explained that he had made this offer in order to relieve the pressure on the Applicant and to assist him to resettle into the Australian community. Mr Khoo explained that he had made an arrangement with the Applicant whereby the Applicant would assist Mr Khoo in the expansion of his catering business as a way of repaying this money.
The Applicant’s counsel has submitted that if he is relocated to the United Kingdom Mr Khoo would not pay the restitution. Consequently, there would be a risk that the restitution debt would continue to be unpaid for a period of time (depending on factors such as the Applicant’s ability to obtain employment) which would constitute an impact on Australian business interests (Exhibit A1, paragraph [196]). However, counsel for the Respondent submitted that this consideration was not relevant because the Applicant was not involved in the delivery of any major projects or of an important service in Australia. Counsel for the Respondent made the submission that a debt that is owed to an insurance company through a compensation order, could not properly be said to be an impact on an Australian business interests (transcript, page 109).
The Tribunal is of the opinion that the first part of paragraph 14.3(1) of Direction No 79, “Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked…” stands alone, and that the remaining part of the paragraph “…noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia” is not relevant to this application because the example given relates to “employment”. That is, the first part of paragraph 14.3(1) of Direction No 79 is expressed generally, and consequently, any difficulties that an insurance company may face in recovering a large sum of money by way of restitution may constitute an impact on Australian business interests.
Regardless of the construction adopted, there is insufficient evidence before the Tribunal to support a definitive finding that there would be a detrimental impact on Australian business interests if the decision to cancel the Applicant’s Visa is not revoked.
Whether the Applicant would be able to repay the remaining $80,000 if he were returned to the United Kingdom, and the enforceability of the compensation order if he were outside of the Australian jurisdiction are uncertain, and to reach a definite conclusion would require the Tribunal to speculate. Consequently, the Tribunal regards this consideration as being neutral.
Impact on victims
The Tribunal refers to the discussion above regarding the impact on Australian business interests. There is no specific evidence before the Tribunal about the impact of a decision not to revoke the cancellation of the Applicant’s Visa on the insurance company victims of the Applicant’s offending (paragraph 14.4(1) of Direction No 79).
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is now 35 years of age. The Applicant has some physical health issues following his stroke and is required to take a blood thinner daily. He also has nerve damage in his right shoulder from his 2016 electrocution. As noted earlier, he takes prescribed medication for anxiety and depression, and was diagnosed with PTSD after his 2016 electrocution. He undertook counselling for his PTSD until his imprisonment, which he stated that he intends to resume upon his release from immigration detention.
The Tribunal has found that if the Applicant is removed from Australia, his wife and children who are Australian citizens will not relocate to the United Kingdom with him. Given the Applicant’s mental health history, and his close bond with his wife and children, it is likely that the Applicant would be adversely affected if he were to be separated from his family and that he would experience significant emotional distress, and possibly an exacerbation of his mental health conditions. The Applicant would be able to access health services as a citizen of the United Kingdom, although this does not alter the Tribunal’s finding that his mental health is likely to be adversely impacted.
As the Applicant completed his education, and has work experience in the United Kingdom, having left there as an adult, there are no language or substantial cultural barriers which would be impediments to his return to the United Kingdom. The Applicant’s evidence was that due to an injury he sustained to his finger resulting in his not having full use of it, he is no longer able to work in his profession as a chef because he cannot hold a knife safely (Exhibit A2, pages 35-36, paragraph [101]). This may reduce his employment prospects. His fraud convictions may also make it difficult for him to secure employment. The Applicant does, however, have some experience in the hospitality industry, and in business and property developments (which he was involved in prior to coming to Australia), which may assist him in finding employment if he were to return to the United Kingdom.
The Applicant would have access to the same economic support, including social security, as other citizens of the United Kingdom. There was some evidence that the Applicant has equity in properties owned by a family company in the United Kingdom. His evidence was that this equity may be difficult for him to access without instigating legal proceedings because he signed over his voting rights in the company to his brother prior to moving to Australia, and that his brother had refused to provide him with any financial assistance despite frequent requests from the Applicant. The Applicant’s evidence is that he is estranged from his family members in the United Kingdom, including his father and siblings, and as a consequence his family would be unlikely to provide him with any financial or emotional support if he were to return there.
The Applicant’s wife’s parents, who reside in the United Kingdom, have a close relationship with the Applicant and may be able to offer him emotional and financial support if he were to return to the United Kingdom. There are also organisations such as Prisoners Abroad in the United Kingdom who are able to provide limited assistance and support to persons resettling in the United Kingdom. The Applicant is aware of this organisation.
On balance, the Tribunal finds that the Applicant would most likely be able to establish himself and maintain basic living standards if he were to return to the United Kingdom. However, his main impediment if he were to return to United Kingdom is likely to be his mental health, particularly due to his separation from his wife and children.
Consequently, this consideration weighs slightly in favour of the revocation of the cancellation decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the cancellation of the Applicant’s Visa, having regard to the primary and other considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)The nature and seriousness of the Applicant’s conduct weighs moderately in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (paragraphs 13.1 and 13.1.1 of Direction No 79).
(b)The risk to the Australian community should the Applicant commit further offences weighs only slightly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa because the likelihood of the Applicant reoffending is low to minimal (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of
Direction No 79), weighs slightly to moderately in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa.
With respect to the remaining primary considerations, the Tribunal finds that:
(a)The best interests of the Applicant’s four minor children weigh strongly in favour of the revocation of the cancellation of the Applicant’s Visa (paragraph 13.2 of Direction No 79).
(b)When balanced with the other primary and secondary considerations, the expectations of the Australian community (paragraph 13.3 of Direction No 79) weigh slightly in favour of refusing to revoke the cancellation of the Applicant’s Visa.
In relation to the other considerations that are applicable to this application:
(a)The strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weigh strongly in favour of the revocation of the cancellation of the Applicant’s Visa.
(b)The impact on Australian business interests is neutral (paragraph 14.3(1) of Direction No 79).
(c)The impediments the Applicant would face if returned to the United Kingdom weigh slightly in favour of the revocation of the cancellation of the Applicant’s Visa (paragraph 14.5(1) of Direction No 79).
The Tribunal finds that the primary consideration of the best interests of the Applicant’s four minor children substantially outweighs the other primary considerations of protection of the Australian community and the expectations of the Australian community. The other considerations which weigh in favour of the Applicant, including the Applicant’s strength, nature and duration of ties to Australia, and the extent of impediments if removed further add to this weight, and to the Tribunal being satisfied that there is another reason to revoke the cancellation of the Applicant’s Visa.
Having had regard to all of the relevant primary considerations and the relevant other considerations in Direction No 79, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the cancellation of the Applicant’s Visa should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 189 (one hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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Associate
Dated: 12 February 2020
Date of hearing:
29 January 2020
Representative for the Applicant:
Representative for the Respondent:
Ms A Graziotti, Estrin Saul Lawyers & Migration Specialists
Mr A Gerrard, The Australian Government Solicitor
Key Legal Topics
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Immigration
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Administrative Law
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