Mukhtar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2886

Mukhtar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2886 (8 August 2024)
Division:GENERAL DIVISION
File Number(s):2024/3116
Re:Ali Mushtaq Mukhtar
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 8 August 2024
Date of written reasons: 15 August 2024
Place:Canberra

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958.
….......................[SGD]........................................
Member W Frost
CATCHWORDS
MIGRATION – cancellation of Applicant’s Child (Class AH) subclass 101 visa – mandatory cancellation of visa under s501(3A) Migration Act – whether Applicant passes the character test – substantial criminal record – consideration of Ministerial Direction 110 – whether ‘another reason’ why decision should be revoked under s501CA(4) – decision under review affirmed
LEGISLATION
Migration Act 1958
Migration Amendment (Aggregate Sentences) Act 2023
CASES
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802

SECONDARY MATERIALS
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
15 August 2024
INTRODUCTION

This proceeding concerns the review of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), not to revoke a decision to mandatorily cancel the Child (Class AH) (subclass 101) visa (Visa) of the Applicant, Mr Ali Mushtaq Mukhtar, under subsection 501(3A) of the Migration Act 1958 (Act).[1]
[1] Exhibit 1, pages 13-34.
Mr Mukhtar is 41 years old and a citizen of Fiji.[2] Since 2001, and from 18 years old, he has lived in Australia.[3] In 2022, Mr Mukhtar was convicted of multiple criminal offences, including two counts of ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’, two counts of ‘Intentionally choke etc person without consent (DV)-T1’ and four counts of ‘Assault occasioning actual bodily harm (DV)-T2’.[4] In 2023, Mr Mukhtar’s Visa was mandatorily cancelled because he had been sentenced to a term of imprisonment of 12 months or more for that offending (Cancellation Decision).[5] He sought revocation of the Cancellation Decision,[6] but a delegate of the Minister refused that request in May 2024.[7] As a result, Mr Mukhtar applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.[8]
[2] Ibid, pages 5, 82 and 108.
[3] Ibid, page 108.
[4] Ibid, pages 36-39.
[5] Ibid, pages 112- 121.
[6] Ibid, pages 82-102.
[7] Ibid, pages 13-34.
[8] Ibid, pages 4-12.
The Tribunal has considered all documents filed in this proceeding, including pursuant to section 501G of the Act, together with the parties’ submissions.[9] For the following reasons, the Tribunal has decided to affirm the decision under review not to revoke the Cancellation Decision. This means that Mr Mukhtar’s application to the Tribunal is unsuccessful, and his Visa remains cancelled.
[9] Exhibits 1-2.
BACKGROUND
In August 2001, Mr Mukhtar arrived in Australia on the Visa, the subject of this proceeding.[10]
[10] Exhibit 1, page 108.
In December 2022, Mr Mukhtar was convicted in the Local Court of New South Wales (NSW) of multiple criminal offences (2022 Convictions).[11] He was sentenced to an aggregate term of 30 months’ imprisonment with a non-parole period of 18 months concluding on 26 July 2023.[12]
[11] Ibid, page 36-39.
[12] Ibid.
In March 2023, Mr Mukhtar’s Visa was mandatorily cancelled under subsection 501(3A) of the Act.[13] Mr Mukhtar was invited to make representations seeking revocation of that decision.[14]
[13] Ibid, pages 112-121.
[14] Ibid.
In April 2023, Mr Mukhtar requested revocation of the mandatory cancellation of his Visa.[15]
[15] Ibid, pages 82-102.
On 14 May 2024, a delegate of the Minister decided not to revoke the mandatory cancellation of Mr Mukhtar’s Visa.[16] On 16 May 2024, Mr Mukhtar received notice of that decision delivered by hand to him in Villawood Immigration Detention Centre (Villawood).[17]
[16] Ibid, pages 21-34.
[17] Ibid, pages 13-34.
On 20 May 2024, Mr Mukhtar applied to the Tribunal for review of the decision not to revoke the Cancellation Decision.[18]
LEGISLATION & MINISTERIAL DIRECTION
[18] Ibid, pages 4-12.
The Act
Subsection 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’, because they have a ‘substantial criminal record’, and 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’.
Under subsection 501(6)(a) of the Act, a person does not pass the ‘character test’ if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Subsection 501CA(3) of the Act provides that when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and 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 cancellation decision.
Under subsection 501CA(4) of the Act, the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
For completeness, the Tribunal notes that subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the mandatory cancellation of the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 7 June 2024, the Minister made a direction under section 499 of the Act, being Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110), which commenced on 21 June 2024 and applies in relation to the Tribunal’s consideration of Mr Mukhtar’s application for review of the decision not to revoke the Cancellation Decision.
The Preamble to Direction 110 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)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 (paragraph 5.2(1));
(e)the safety of the Australian community is ‘the highest priority of the Australian Government’ (paragraph 5.2(2));
(f)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(3));
(g)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(4));
(h)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(5));
(i)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(6)); and
(j)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation (paragraph 5.2(7)); and
(k)the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(8)).
Section 6 of Direction 110 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 110 relevantly states that, in making a decision under subsection 501CA(4) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 110 relevantly provides that, in making a decision under subsection 501CA(4) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Finally, paragraph 7 of Direction 110 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether Mr Mukhtar passed the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether there was ‘another reason’ why the original decision to mandatorily cancel the Visa (the Cancellation Decision) should be revoked under subsection 501CA(4)(b)(ii) of the Act.
EVIDENCE
Mr Mukhtar
The Tribunal has considered Mr Mukhtar’s written material from 2023 requesting revocation of the Cancellation Decision.[19] On 24 May 2024, following a Case Management Directions Hearing in this proceeding attended by Mr Mukhtar on the same date, the Tribunal made directions for Mr Mukhtar to provide any witness statements, other evidence and a Statement of Facts, Issues and Contentions by 27 June 2024 and any evidence in reply by 25 July 2024, in advance of the Tribunal hearing commencing on 30 July 2024. Mr Mukhtar did not lodge any written material, including a witness statement, in this proceeding. However, for the avoidance of doubt, the Tribunal is satisfied that Mr Mukhtar had a reasonable opportunity to present his case in this proceeding, including through oral submissions at the hearing.
[19] Ibid, pages 82-102 and 104-105.
Mr Mukhtar gave evidence at the Tribunal hearing by video from Villawood. He told the Tribunal that he was sorry for ‘what I’ve done’; it caused a person harm and he was ‘deeply sorry’, he ‘didn’t mean to do that’. Mr Mukhtar said the circumstances were ‘very bad’ at the time, he had lost a child who was ‘stillborn’ and was ‘suicidal’. Mr Mukhtar said he had possession of the deceased child for the coroner, it was put in a freezer and he did not know what happened to that child when he was gaoled. In the lead up to Mr Mukhtar’s offending, he told the Tribunal, he and his then partner started fighting and arguing because they were ‘blaming each other’ for the loss of their child. He reached ‘a breaking point’ and was guilty ‘for most of the charges’ and pled guilty to ‘all of the charges’.
Mr Mukhtar did not deny hurting his former partner, but said she was with him when he was subsequently arrested and ‘there was no mark on her body, not even one’. Mr Mukhtar said he ‘did hurt’ his partner and he was ‘suicidal’ at that time. He received help in gaol and is still receiving psychological support, but still does not know what happened to his stillborn child.
Mr Mukhtar referred to his robbery offence in 2004. He told the Tribunal that he made ‘wrong choices’ and ‘wrong friends’ and, because he was ‘in company’, he ‘went down’ for the charge.
Mr Mukhtar denied using drugs in gaol and said he was clean. He had one ‘charge’ in gaol, where you ‘have to stand up for yourself’ or you ‘get walked all over’. It was ‘one fight’ and he told the Tribunal he is ‘respectful to everybody’.
In relation to his driving offences, Mr Mukhtar said he lost everything in relation to a business he established and was held ‘hostage’ by ‘bikies’ and beaten (Mr Mukhtar subsequently described that incident as a ‘siege’). He told the Tribunal that he could not leave his house for nearly one year afterwards due to ‘anxiety and depression’. Mr Mukhtar said he had no one to talk to and started consuming drugs.
Mr Mukhtar told the Tribunal he asked for help in detention and completed courses, but these were limited. He wants to prove to himself that he ‘can be better’ and make the most of life; he wants to see his children and be involved in their lives. Mr Mukhtar said that he misses his children ‘every day’.
Mr Mukhtar took responsibility for the offence of driving while disqualified, but said this occurred after the ‘hostage’ incident, he lost faith in everyone, did not trust anyone and was living in his car.
In relation to his former partner, Mr Mukhtar said she was with him when he was arrested for his most recent offending and her sister had told his partner that every ‘event’ of domestic violence attracted a separate victims compensation amount. He did not deny hitting his partner, but said he ‘never choked her’. Mr Mukhtar also denied there being an ‘AVO’ (or apprehended violence order), because he went to court, his charges were dropped, his lawyer told him he was ‘free to go’ and Mr Mukhtar had not signed any paperwork. However, he pled guilty to breaching that AVO, but said he was at his then partner’s residence at the time to help because of her own mental health issues.
Mr Mukhtar told the Tribunal that maybe he ‘did not deserve a chance’, but humans make mistakes, he made mistakes, the COVID-19 pandemic was ‘really bad for me’, he lost his job and ‘everything’. Mr Mukhtar said he did not want to hurt his partner, but his mental state was ‘really bad’, he was not ‘thinking straight’, ‘hurt her’ and he was ‘sorry’. He said he was not a bad person, he made a bad mistake and the wrong choices.
Mr Mukhtar further told the Tribunal he was seeing psychologists in Villawood and they ‘gave me a foundation that I did not have’. He said Australia ‘means a lot to me’ and he considered himself a ‘proud’ Australian, although he ‘stuffed up’ and needed ‘a chance’ to prove to himself and his family.
Mr Mukhtar again said he had ‘no intention’ of committing the domestic violence offences, but COVID-19 ‘stuffed everything up’. He felt ‘stamped on’, although he loved this country.
In Fiji, Mr Mukhtar went to boarding school and lived with his grandmother. He said he had ‘no-one’ in Fiji. Mr Mukhtar wanted ‘one more chance’, he had ‘stuffed up’ and was ‘really sorry for everything’ he had done.
On the risk of reoffending, Mr Mukhtar said he understood the driving, robbery and domestic violence charges, but he is ‘not a bad person’, he ‘respects everyone’ and would not intentionally hurt someone, especially the mother of his child.
In relation to rehabilitative courses, Mr Mukhtar said he wanted to make himself ‘better’, but it was hard for him to provide any evidence to support these efforts.
Mr Mukhtar professed his love for his children, and said taking them away from him was like ripping his heart out. He again said that he was not a bad person, he needed another chance and Australia was his home and he had not left since arriving in 2001. Mr Mukhtar said it would be different if he had ‘knowingly’ made a mistake, but at that time he had ‘no bad intention’ of hurting his former partner and jeopardising his life.
Under cross-examination, Mr Mukhtar confirmed that he arrived in Australia in 2001 aged 18. He has two minor children, S and K, aged eight and three. They have separate biological mothers. Mr Mukhtar was in a de facto relationship with the mother of S for one year between 2014 and 2015. He was in a de facto relationship with the mother of K for two years from 2020 until his arrest in 2022. They were living together during their relationship. Mr Mukhtar told the Tribunal his son, K, ‘usually’ resided with them, being most of the week, and then stayed with the sister of Mr Mukhtar’s partner on the weekend because the wider family all wanted to spend time with that child. His former partner has four other children who live with their father and they did not previously live with Mr Mukhtar and his partner. K now lives with his mother, being Mr Mukhtar’s former partner. The other minor child, S, lives with his maternal grandmother, pursuant to court orders, because Mr Mukhtar’s former partner was said to be mentally ‘unstable’ requiring frequent hospitalisation. The access conditions for Mr Mukhtar to spend time with S were said to be that he can call up ‘DOCS’ and visit ‘whenever I want’, with ‘usually there’s someone always coming from DOCS’ to attend his visits, together with the grandmother. Mr Mukhtar said that his son has a ‘good bond’ with his maternal grandmother and disrupting that is ‘not a good thing’; Mr Mukhtar cannot go directly to the grandmother’s house to visit his son. Mr Mukhtar initially saw his son for one hour during these visits, but sometimes it was for two or three hours. He could not recall how often he has visited S under these conditions. He has not visited or seen S since the COVID-19 pandemic in 2020. He has not contacted S by other means because he does not want to jeopardise his access and confirmed that he last spoke to him in late 2020.

Mr Mukhtar told the Tribunal that he worked as a ‘welder’ before he was last incarcerated in 2022. He had numerous jobs for varying periods of time but, since COVID-19, manufacturing and engineering jobs were ‘really hard to get’ and he had casual employment. Mr Mukhtar agreed to having irregular employment from 2020 to the time he went to gaol in 2022. Before the COVID-19 pandemic, Mr Mukhtar said that he worked in manufacturing for 18 to 24 months.
In relation to his offending, Mr Mukhtar was taken to his 2022 Convictions. He agreed that he was convicted of the associated offending and was sentenced to 30 months imprisonment with an 18 month non-parole period, together with an apprehended domestic violence order which expires in December 2024. Mr Mukhtar agreed that he withdrew an appeal regarding the severity of that sentence.
Mr Mukhtar also agreed that the offending which led to the 2022 Convictions occurred between December 2021 and January 2022 and was committed against his then de facto partner.
He was referred to the first incident during the period detailed in the sentencing remarks, being that, on 24 December 2021, Mr Mukhtar punched the victim to the head and body.[20] He told the Tribunal that he did not agree with that characterisation.
[20] Ibid, pages 43-44.
In relation to the second incident, on 29 December 2021, the court found that Mr Mukhtar used both hands to push down on the victim’s face and nose and punched her in the head.[21] Mr Mukhtar again told the Tribunal that he did not agree with the court’s characterisation of that incident.
[21] Ibid, page 44.
In relation to the third incident, which occurred on 10 January 2022, the court found that Mr Mukhtar yelled at the victim, ‘I will kill you, you stupid bitch. I won’t hesitate to stab you’.[22] Mr Mukhtar told the Tribunal that what he said at that time was different to how it was reported in the sentencing remarks. However, Mr Mukhtar agreed that he said he would kill his partner, but not anything else. That is, Mr Mukhtar said, he did not say that he would ‘stab’ his partner.
[22] Ibid.
In relation to the fourth incident, on 18 January 2022, the court found that Mr Mukhtar ‘placed both of his hands around her neck’ and the victim ‘could not breath’.[23] Mr Mukhtar told the Tribunal that he ‘never choked’ his then partner, but agreed that he pled guilty to the offence.
[23] Ibid.
In relation to the fifth incident, which happened on 19 January 2022, Mr Mukhtar agreed that he hit his then partner.[24]
[24] Ibid.
In relation to the sixth and final incident, on 20 January 2022, during which the court found that Mr Mukhtar: ‘used an electric cord and started to whip the victim with the cord’; he ‘punched the victim’ and kicked her; he ‘placed both his hands on her neck and started to squeeze saying words to the effect, ‘I’m going to kill you’, with the victim struggling to speak and ‘found it difficult in breathing’; he jabbed a knife in the victim’s direction and said ‘I will kill you. I will kill you. You even tried to put me back in gaol’.[25] Mr Mukhtar told the Tribunal that he did not agree with those remarks, but said he hit his then partner and she ‘came at me’ with scissors. Mr Mukhtar further stated that his victim had ‘bruised lips’, but ‘no other marks’. He said she knocked the coffee table and he told her to leave the premises. Mr Mukhtar agreed that he was guilty and pleaded so to the offending.
[25] Ibid, pages 44-45.
Mr Mukhtar also agreed that his then partner called the police and went to her sister’s residence. He denied that this demonstrated she was afraid of him because, he said, his partner came back the next day and was present when he was arrested. Mr Mukhtar claimed that she told police there were separate incidents to generate multiple victims of crime compensation payments. He pleaded guilty because he had already been in gaol for 11 months by that time in relation to the associated charges and was told by a lawyer to plead guilty in order to be released immediately. Mr Mukhtar said his partner had ‘no bruises, no marks’, just on her lips. He withdrew the sentence appeal because he was threatened with receiving further time. Mr Mukhtar told the Tribunal that K was not present with them at that time because they were ‘arguing a lot’ and K had been residing at his partner’s sister’s residence. Mr Mukhtar said he was ‘suicidal’ because of the stillborn child.
Mr Mukhtar denied being under the influence of illicit drugs at the time of the offending. He also denied there being an interview about his offending with NSW Corrective Services. Mr Mukhtar was referred to a sentencing assessment report from 6 December 2022.[26] He said no corrections officer spoke to him, apart from a psychiatrist. Mr Mukhtar was then referred to his reported statement in that assessment report that he was under the influence of illicit drugs at the time of his offending. He said he was not taking drugs at the time of the offending and had been ‘off drugs’ for ‘nearly two years’. Mr Mukhtar repeated his denial about being under the influence of drugs at the relevant time and also said he does not drink alcohol.
[26] Exhibit 2, pages 163-167.
Mr Mukhtar agreed that the miscarriage or stillborn birth occurred in November 2021 and it was ‘really traumatic to me’. He also agreed that his offending commenced approximately one month later in December 2021.
The Minister’s representative referred Mr Mukhtar to his evidence that he had a breakdown and mental health issues at the time of his most recent offending. Mr Mukhtar said he and his then partner engaged in ‘a lot of blaming each other’. He agreed that his partner was also not in a good mental state at that time, and said that she was ‘very vulnerable’ and ‘very tricky’, with ‘anything’ setting her off. She went through labour and the baby was delivered. Mr Mukhtar agreed to committing the offences while his partner was in this vulnerable state.
Mr Mukhtar was referred to his criminal history of over 40 offences commencing from 2003. He said ‘nothing was violent’, apart from the robbery offence, but agreed that he had an extensive criminal history.
Mr Mukhtar agreed that he pled not guilty to the robbery offence from 2004, for which he was convicted following a trial and sentenced to four years and six months imprisonment in 2006. Mr Mukhtar was asked whether he agreed with the sentencing remarks from 2006. He told the Tribunal that he was found guilty and had done his time for that offence. Mr Mukhtar maintained that he was ‘in the wrong company’ at the time, but that the robbery plan was devised at a house, not at the service station they robbed. However, Mr Mukhtar also said he did not ‘go there to rob anybody’. As a result, Mr Mukhtar was referred to the judge’s finding that he at least had equal responsibility for the offending. Mr Mukhtar did not agree that he committed the robbery offence, only ‘robbery in company’. He said he was aware at that time he was on bail for driving matters. Mr Mukhtar said he was trying to be of good behaviour and again stated that he had not planned the robbery.
The Minister’s representative referred Mr Mukhtar to a letter from the Department dated 1 May 2007 regarding the possible cancellation of the Visa. Mr Mukhtar said he ‘never received’ any paperwork in gaol. He was then referred to a further letter, dated 21 September 2007, providing notice that the Visa had not been cancelled, but containing a warning regarding future reconsideration of cancellation.[27] Mr Mukhtar told the Tribunal that he did not recall receiving that notice, he did not read anything upon his release from gaol, but just signed paperwork. He agreed that it was his signature and the correct date on the paperwork, but said he did not read the notice because he had multiple papers to sign. Mr Mukhtar confirmed that he had previously understood that the Department was interested in possibly cancelling his Visa and agreed signing the subsequent statement in September 2007. However, Mr Mukhtar maintained that he did not read that document at the time of signing and did not know it existed until this Visa cancellation process. He agreed that if he had read the document he would have known that further offending would result in possible cancellation of the Visa and that his criminal history demonstrated that he continued to offend after receiving the statement.
[27] Exhibit 1, pages 109-111.
Mr Mukhtar was referred to his conviction for ‘Contravene prohibition/restriction in AVO (Domestic)’ in February 2017, which related to another de facto partner, the mother of S.[28] He agreed that he was at the time found at her premises, behind a door, and said this was because he did not want the police to see him as his partner would get in trouble with her mother. It was put to Mr Mukhtar that he knew at that time he was subject to an ADVO. He disagreed and said he had no such paperwork and once he found out there was an ADVO he pled guilty to its breach.
[28] Ibid, page 40.
The Minister’s representative referred to an ‘Incident Details’ report from the NSW Department of Corrective Services regarding Mr Mukhtar’s involvement in a fight in September 2022.[29] He denied being involved in any fight during his time in immigration detention and that his only fight was while in gaol.
[29] Exhibit 2, page 185.
Mr Mukhtar agreed that he had an extensive history of illicit drug use. He told the Tribunal he used methamphetamine and ‘pot’, but not heroin. Mr Mukhtar said he started using ‘meth’ after a ‘near death experience’ during the ‘Macquarie Fields Siege’ in 2009 where he was held for three hours by ‘bikies’. He had previously used ‘pot’, but never heroin. Mr Mukhtar denied starting using methamphetamine in 2004. He initially smoked ‘meth’ weekly from 2009, but approximately ‘two or three months later’ it became a daily habit and it was ‘hard for me to stop’ due to addiction. Mr Mukhtar consumed ‘meth’ for approximately four or five years and stopped when his former partner was pregnant in 2015. He last consumed ‘meth’ in ‘2018 and 2019’ when he ‘picked the habit back up’ and relapsed for ‘nearly two years’ due to ‘stress’, although it was not a daily consumption. Mr Mukhtar said the stress emanated from being unable to maintain employment before COVID-19, because the company he worked for ‘went under’. He tried ‘rehab’ but ‘got nowhere’. Mr Mukhtar denied using methamphetamine at the time of his most recent offending commencing in late 2021.
The Minister’s representative referred to the statement in the sentencing assessment report prepared by Community Corrections in December 2022 that Mr Mukhtar ‘rationalised his drug use exacerbates his aggression and affects his ability to regulate his emotional responses’.[30] Mr Mukhtar told the Tribunal that he was not aggressive and did not commit any crime when ‘on drugs’. He was then referred to the statement in that report that he ‘states that he was under the influence of illicit substances at the time of the offences’ and ‘claims that both he and his partner were self-medicating with illicit drugs to deal with trauma experienced at the time’.[31] Mr Mukhtar told the Tribunal that his then partner was ‘doing drugs’ behind his back, but said he did not tell Corrective Services that he was using drugs at that time.
[30] Ibid, page 164.
[31] Ibid.
The Minister’s representative asked Mr Mukhtar to explain his mental health issues. He told the Tribunal that he was suicidal when he went to gaol, but that he understood how to control his ‘anxiety and depression’ through psychological assistance from multiple psychologists in gaol and immigration detention. Mr Mukhtar said that he was ‘still working on it’ but was thankful for that psychological assistance. He first started seeing a psychologist in 2022 for one hour sessions when in gaol but was unsure how many sessions he had while incarcerated. Mr Mukhtar said sessions could sometimes be held weekly or over a longer period of time. While in immigration detention, Mr Mukhtar initially saw a psychologist fortnightly, but this was now weekly.
Mr Mukhtar was referred to a summary of his psychological treatment provided by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) and dated 10 May 2024.[32] He agreed that he had been offered four sessions but attended one session. Mr Mukhtar told the Tribunal this was ‘at the beginning’ and he did not answer calls for two sessions because he was ‘depressed’ following the reviewable decision to not revoke the Cancellation Decision leaving him without ‘energy’ for these sessions or to do ‘anything’. Mr Mukhtar said that, since May 2024, he had attended ‘every single one’ of the scheduled psychological sessions, which he subsequently said he attended weekly with STARRTS. He said they discuss ‘everything and anything’, such as where he is in life, what he wants to do and what he is doing about it. Mr Mukhtar told the Tribunal that the sessions have been of much use to him, and that ‘life is worth living’.
[32] Ibid, page 237.
Mr Mukhtar recalled undertaking the Remand Domestic Violence program in April 2022 and learnt that his anger got the better of him and sometimes it is better to walk away than trying to fix things. Mr Mukhtar told the Tribunal that when you get angry there are different ways to calm yourself and it was ‘not right to hurt anyone’. He said it was ‘on me’ to make himself better and that there is help if prepared to take it up. The group attending the course discussed why they offended and how to make changes. Mr Mukhtar said he had ‘done really wrong’, but wanted to ‘work on it’. He had engaged with the Smart Recovery program since being in immigration detention and done approximately 14 or 15 in-person sessions each of one hour duration. Mr Mukhtar told the Tribunal that they discussed a ‘variety of subjects’ and he used it to learn about himself and ‘staying clean’ from drugs, because there is ‘temptation’ in the community, and associating with pro-social peers. Mr Mukhtar further stated that he learnt to say close to family and to not associate with people at the pub.
The Minister’s representative referred to the clinical records produced from Mr Mukhtar’s time in immigration detention and put to him that it indicated he had attended one Smart Recovery session in February 2024.[33] He said that he had the paperwork to demonstrate additional attendances. Mr Mukhtar was asked whether he had undertaken any other rehabilitation. He told the Tribunal that there were no other programs available in immigration detention, so he had not done anything else. Mr Mukhtar noted that he had worked all the way through his time in gaol and was the ‘head chef’ at one correctional centre.
[33] Ibid, pages 216-236.
Mr Mukhtar referred to his ties to family and said he used to be close to his father, but Mr Mukhtar had ‘shamed him’ and ‘made him angry’ when he went to gaol in 2004. They are now close, and this commenced from the birth of Mr Mukhtar’s first child in 2015. He agreed that, in 2022, they did not have much contact. However, Mr Mukhtar said his father had forgiven him, although he was still angry with him, but not ‘disgusted to see me’. They are in contact approximately weekly by telephone.
Mr Mukhtar said that he has always been close to his sister; she is the only girl, and he is always protective of her and there for her. They have a ‘really good relationship’ and they saw each other ‘all the time’ and he went to her residence every possible chance before incarcerated. At that time, they spoke weekly and he visited her monthly. They remain in contact ‘very regularly’, being ‘weekly’, because she is ‘going to hospital’ for chemotherapy.
Mr Mukhtar confirmed that he had asked his family to provide written statements for this proceeding. His sister provided Mr Mukhtar with her contact details if they were required, but did not provide any statement. He confirmed they were aware that his Visa was cancelled. Mr Mukhtar’s father was aware of the Tribunal hearing and Mr Mukhtar had previously informed his sister of the hearing. Mr Mukhtar also said that his brother has a mental illness and he ‘always cared for’ him.
Mr Mukhtar said he would live with father if returned to the community in order to provide him with care following his ‘open heart surgery’ in August 2023. Mr Mukhtar told the Tribunal his father required someone to look after and take care of him. Mr Mukhtar said his two nephews have been caring for his father, but they were not always available because of university studies and their own lives.
Mr Mukhtar confirmed that he cannot contact his son, K because of an ‘AVO’ and Mr Mukhtar is not currently in contact with his other son, S. If returned to the community, he would seek ‘full visitation rights’ in relation to K. Mr Mukhtar has not spoken to K’s mother due to the AVO, nor has he spoken to his son’s grandmother because he does not have her telephone number. Mr Mukhtar would start with ‘weekend access’ to S if returned to the community and would talk to ‘DOCS’ about this issue, rather than speaking to S’s grandmother.
Mr Mukhtar told the Tribunal that he had surgery twice last year to remove a tumour on his right hip and to address a subsequent infection. He is presently undertaking twice weekly physiotherapy for walking due to muscle loss associated with the tumour. Mr Mukhtar has been told he required lifelong physiotherapy, but did not know whether he required further surgery.
Following cross-examination, Mr Mukhtar told the Tribunal that he regretted his offending and ‘stuffed my life up’ because of his actions. He was trying to forgive himself and hoped his former partner did too. He also said he probably did not deserve a second chance; he made a mistake, associated with the wrong people and took drugs that ‘took me there’ and maybe he would not have ‘mental problems’. Mr Mukhtar said he took responsibility and was sorry.
In relation to the robbery offence, Mr Mukhtar said that he pled not guilty and went through a trial because he believed he was right, although he also told the Tribunal that he was ‘in the wrong’.
Mr Mukhtar said that he tried to ask for as many rehabilitative programs as possible, but the only one available was a domestic violence course which he completed. He had one fight since being arrested, in gaol, when someone ‘headbutted’ him. Mr Mukhtar said that everyone must defend themselves. He wants to be a good father to his children and has a lot of love for them. Mr Mukhtar was still seeking to address problems ‘in my head’, seeking help and ‘trying to be better’. He knew he could be ‘a provider’ and a ‘good father’; he wants to return to his family. If returned to Fiji, Mr Mukhtar said that there were no support programs and he would be on his own. He said that everything he has is in Australia and everything he knows is in this country. Mr Mukhtar told the Tribunal that finding work or shelter in Fiji would be ‘impossible’ because he cannot walk properly.
Mr Mukhtar said that if there was further opportunity to undertake other programs he would take that opportunity. He has been ‘trying to prove to myself’ because it was ‘hard for me to forgive myself’ after choosing the ‘wrong path’ and ‘the wrong friends’. Mr Mukhtar said he should not be so trusting and allow everybody into his life and should chose the right friends in order to follow the right path. He ‘stuffed up so bad’ that maybe he does not have any more chances, but he was a better person after working on the things that ‘make you bad’.
In relation to his most recent offending, Mr Mukhtar said that he ‘should not have done that’ and his then partner ‘didn’t deserve that’; they had both lost a child, he ‘stuffed up’ and was now seeking to ‘own everything’ and do ‘everything in my power’ to improve. Finally, Mr Mukhtar said that he needs his children in his life because they ‘mean a lot to me’.
Mr Mukhtar’s father

Mr Mukhtar’s father gave evidence by telephone at the Tribunal hearing.
Under cross-examination, Mr Mukhtar’s father confirmed that he understood the nature of this proceeding. He was referred to an email from 2 October 2023 and recalled sending that correspondence to the Minister’s Department.[34] Mr Mukhtar’s father agreed that he would like his son to cut his lawn, shop for him and live with him if he returned to the community. Mr Mukhtar’s father referred to requiring assistance from his son in relation to shopping and cleaning the house weekly. He has multiple medical problems and requires assistance with daily activities. Mr Mukhtar’s father said his son could live on his own in the community, but he would like it if Mr Mukhtar lived with him.
[34] Exhibit 1, pages 106-107.
Mr Mukhtar’s father said currently his landlord’s son, his own grandsons or friends, of whom he has ‘a lot’, assist with mowing the lawn and shopping. He did not agree that he has found assistance from people other than his son, because he has to wait for these other people to be available to assist him. Mr Mukhtar’s father told the Tribunal that he requires weekly household cleaning and shopping, together with monthly lawn mowing in summer. He disagreed that he was presently receiving sufficient assistance with these activities, including because he had to contact these other people and request their help. Mr Mukhtar’s father doubted he would continue being able to receive support from those he already receives support from in the community if his son was not returned to the community. When asked whether he received assistance from his daughter, Mr Mukhtar’s father referred to her cancer and hospitalisation. His other son does not talk to him and ‘very seldom’ visits.
Mr Mukhtar’s father confirmed that he had coronary heart bypass in August 2023. He was referred to the cardiologist’s statement that he had recovered ‘remarkably well following cardiac surgery’.[35] Mr Mukhtar’s father told the Tribunal that his blood pressure had increased resulting in increased medication.
[35] Ibid, page 107.
In re-examination, Mr Mukhtar’s father said that he cannot lift more than five kilograms, bend down or mop the floor due to a longstanding back condition. While his cancer had been treated, the related chemotherapy had affected toileting and he has upcoming related appointments.
Mr Mukhtar’s father told the Tribunal he had not seen his other son for five years, although he recently called him and was told he was busy and could not ‘make it’ to visit. Mr Mukhtar’s sister was said to have had a pre-operative appointment ‘last week’ and Mr Mukhtar’s father was told she was having surgery shortly, she had travelled to Fiji to visit family and other family are busy with their own lives, such as study and work, to provide him with assistance. Mr Mukhtar’s father said his son-in-law was working and it was difficult for that couple to support their own four children.
Mr Mukhtar’s father said his son had a strong relationship with him and his sister, but he was uncertain about Mr Mukhtar’s brother. He described Mr Mukhtar as being ‘good’ with ‘all the family’ and that he used to help with ‘fundraising’ in the community.
CONTENTIONS
Mr Mukhtar
Mr Mukhtar acknowledged that he had been sentenced to a term of imprisonment of 12 months or more. However, Mr Mukhtar contended that the Tribunal should set aside the decision under review and substitute it with a decision to revoke the Cancellation Decision. He submitted that he was not a risk to the Australian community, had changed from the time of his offending, wanted to support and be with his family and to have the opportunity to be a good father to his two children.
Minister
The Minister contended that Mr Mukhtar did not pass the character test under the Act and that there was not ‘another reason’ why the Cancellation Decision should be revoked. The Minister submitted that the Tribunal should affirm the decision under review because Primary Consideration 1, the protection of the Australian community, Primary Consideration 2, family violence committed by the non-citizen, and Primary Consideration 5, the expectations of the Australian community, all weighed against revoking the mandatory cancellation of the Visa, and outweighed the considerations in Mr Mukhtar’s favour.
CONSIDERATION
Does Mr Mukhtar pass the character test under the Act?
As set out above in these reasons, on 21 December 2022, Mr Mukhtar was sentenced by the Local Court of NSW to an aggregate term of imprisonment of 30 months in relation to the 2022 Convictions for numerous criminal offences, which included multiple counts of ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’, ‘Intentionally choke etc person without consent (DV)-T1’ and ‘Assault occasioning actual bodily harm (DV)-T2’.[36] Under subsection 501(7)(c) of the Act, Mr Mukhtar therefore has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more. Mr Mukhtar conceded in closing submissions that he had been sentenced to terms of imprisonment of 12 months or more.
[36] Ibid, pages 36-39.
For completeness, the Tribunal notes that, pursuant to section 5AB of the Act, inserted by the Migration Amendment (Aggregate Sentences) Act 2023, the provisions of the Act and the regulations ‘apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence’. The Tribunal is therefore satisfied that there is no issue regarding the applicability of the Act due to Mr Mukhtar having been sentenced to an aggregate term of imprisonment for the multiple offences constituting the 2022 Convictions, rather than sentenced separately for each of those offences.
Pursuant to subsection 501(6)(a) of the Act, the Tribunal finds that Mr Mukhtar fails the ‘character test’ due to having a ‘substantial criminal record’. Accordingly, for the purpose of subsection 501CA(4)(b)(i) of the Act, the Tribunal is not satisfied that Mr Mukhtar passes the character test as defined in subsection 501 of the Act.
Is there another reason why the Cancellation Decision should be revoked?
As a result of the Tribunal’s finding that Mr Mukhtar does not pass the ‘character test’, it turns to consider whether there is ‘another reason’ why the Cancellation Decision should be revoked, pursuant to subsection 501CA(4)(b)(ii) of the Act.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 110 in making a decision regarding a request for revocation of a mandatory cancellation decision pursuant to section 501CA of the Act. Paragraph 6 of Direction 110 provides that a decision-maker must take into account the primary and other considerations identified in Direction 110, where relevant to the decision. Accordingly, the Tribunal sets out below its evaluation of Mr Mukhtar’s circumstances against the relevant considerations in Direction 110.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 110, regarding Primary Consideration 1, states that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Mukhtar’s conduct
Paragraph 8.1.1 of Direction 110 sets out a list of factors to which decision-makers must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, which includes:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
e)    the frequency of the non-citizen’s offending and/or 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
2022 Convictions
In December 2022, Mr Mukhtar was convicted of the following offences:[37]
(a)four counts of ‘Assault occasioning actual bodily harm (DV)-T2’;
(b)‘Destroy or damage property (DV)’;
(c)two counts of ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’; and
(d)two counts of ‘Intentionally choke etc person without consent (DV)-T1’.
[37] Ibid, pages 36-39.
The NSW Local Court sentenced Mr Mukhtar to an aggregate 30 months’ imprisonment with an 18-month non-parole period.[38] He was also made the subject of an apprehended violence order for a period of two years from December 2022.[39] The circumstances of Mr Mukhtar’s offending that led to the 2022 Convictions were summarised in the following sentencing remarks of the Local Court:[40]
The first offence, sequence 1 occurred on 24 December 2021. The victim was at her home preparing for Christmas and was setting up the Christmas tree. The offender came into the room, knocked over the Christmas tree and assaulted the victim by punching her to the head and body. The victim rolled onto [sic] a ball to protect herself from the assault. As a result of the assault she suffered bruising to her right ear, lumps on the right side of her forehead, above the eye. She had scratch marks on her neck and bruising on her legs and her ankles were swollen. She complained of pain throughout her body.
Sequence 3 is, perhaps in relation to this offence, I assess the objective criminality to approach the mid-range. The offending involves multiple blows to the victim. It occurred in the victim’s home. The victim was at the time the partner of the defendant, having been in a relationship with the defendant for a period of approximately two years. The next offence occurred some five days later on 29 December 2021. The offending involves the offender approaching the victim in her room and using both hands to push down on her face and on her nose. The pressure exerted on her nose caused pain to the degree that she thought her nose might be broken. The offender punched the victim in the head. As a result of the assault she suffered bruising under both of her eyes and sort refuge with her sister. Again, the offending involves multiple strikes to the head by the offender that occurred in the victim’s home. I assess the offending to approach the mid-range.
Sequence 4 occurred some 12 days later on 10 January. The victim was speaking with her sister and the offender has heard yelling at the victim, “I will kill you, you stupid bitch. I won’t hesitate to stab you.” The objective criminality of that offence is below the mid-range. The next offence occurred some eight days later on 10 [sic] January. An argument took place in circumstances with the offender believed that the victim was having a sexual relationship with another person. The victim walked into her bedroom. The offender pushed her on the bed and placed both of his hands around her neck. The victim could not breath but she managed to push him off using her legs and she began to cry and left the room. The objective criminality of this offence is below the mid-range and towards the lower end of the scale.
The next offence occurred the following day on 19 January. It involved the offender demanding the victim let him know what’s on her social media messages in circumstances when he perceived that she was being unfaithful to him. The offender began to punch and hit the victim with a clenched fist and kick her with his feet in circumstances when the victim denied the defendant’s request to view her social media. As a result of the assault she suffered bruising on her legs. The offending involves again multiple strikes to the victim. The offending in this offence is slightly of a lesser seriousness than the other offences.
The next series of offending occurred on 20 January the following day. The offender was in an angry mood when one of the victim’s cat has created a mess and the offender requested the victim clean up the mess created by the cat. The offender used an electric cord and started to whip the victim with the cord. He then commenced punching the victim with a clenched fist and kicking her with his feet. The blows landed on her legs, her body and head. The accused placed both his hands on her neck and started to squeeze saying words to the effect, “I’m going to kill you.” The victim struggled to speak and found it difficult in breathing. The offender let go of the victim. She told the offender that she was going to call the police. The offender left the room and returned with a knife which he jabbed in the victim’s direction whilst saying words, “I will kill you. I will kill you. You even tried to put me back in gaol.” The offender then threw the victim’s mobile phone causing it to be damaged. She sought refuge at her sister’s residence. As a result of the assault she suffered bruising on her legs, had a split lip, had bruising behind her ear. Her temple appeared swollen and sore to touch. The offender was arrested following the issue of an arrest warrant. Overall the offending occurred over a number of days. It involved ongoing assaults of a serious nature towards the victim.
Earlier offending
[38] Ibid.
[39] Ibid, page 46.
[40] Ibid., pages 43-47.
Before the multiple offences leading to the 2022 Convictions, Mr Mukhtar committed approximately 30 separate criminal offences from 2003 to 2020.[41] These included offences related to driving, possessing prohibited drugs, custody of a knife in a public place, dishonestly obtaining financial advantage by deception, contravening an apprehended domestic violence order, shoplifting and robbery armed with an offensive weapon.[42] Mr Mukhtar was sentenced to multiple terms of imprisonment for his offending before the 2022 Convictions.[43]
Consideration
[41] Ibid, pages 35-42.
[42] Ibid.
[43] Ibid.
The Tribunal finds that Mr Mukhtar’s 2022 Convictions included crimes of a violent nature against a woman and acts of family violence, which crimes are viewed ‘very seriously’ by the Australian Government and the Australian community, in accordance with paragraph 8.1.1(1)(a) of Direction 110. The nine offences that constitute the 2022 Convictions were all domestic violence-based crimes and were committed against Mr Mukhtar’s then de facto partner.[44] For these reasons, the Tribunal finds that Mr Mukhtar’s criminal offending which led to the 2022 Convictions was ‘very serious’ pursuant to paragraph 8.1.1(1) of Direction 110.
[44] Ibid, page 98.
The Tribunal is also satisfied that Mr Mukhtar’s offence of ‘Robbery armed with offensive weapon’ in 2004 was ‘serious’ pursuant to paragraph 8.1.1(1)(b) of Direction 110. As with conduct that may be considered ‘very serious’, the range of conduct that may be considered ‘serious’ is not limited by the terms of Direction 110. While there was no violence involved, there was a threat of violence made at the time of the robbery because it was committed with a prohibited weapon.[45] The District Court of NSW found that there was ‘a degree of planning’ and ‘a degree of professionalism’ to the offending and that the victim was ‘clearly vulnerable’ because they were ‘an isolated service station attendant working on his own late at night’.[46] Mr Mukhtar was also on conditional liberty at the time of the offence, which was committed in company with two other co-offenders.[47] He was sentenced to a total term of four years and six months’ imprisonment with a non-parole period of three years.[48] For these reasons, the Tribunal finds that Mr Mukhtar’s robbery offence in 2004 was ‘serious’ pursuant to paragraph 8.1.1(1)(b) of Direction 110.
[45] Ibid, pages 53 and 65.
[46] Ibid, pages 61 and 63.
[47] Ibid, page 64.
[48] Ibid, pages 41 and 68.
For the above reasons, the Tribunal finds that the seriousness of Mr Mukhtar’s offending weighs very heavily against revocation of the Cancellation Decision.
Turning to consider the sentence imposed by the courts for a crime or crimes pursuant to paragraph 8.1.1(1)(c) of Direction 110, plainly, a sentence of imprisonment is the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[49] The overall seriousness of Mr Mukhtar’s criminal offending is demonstrated by the multiple separate terms of imprisonment imposed upon him by the courts from 2003 to 2022.[50] While the sentences for these offences were below the respective maximum penalties, the Tribunal finds the sentences imposed by the courts weigh against revocation of the Cancellation Decision.
[49] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]. See also Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
[50] Exhibit 1, pages 36-42.

Paragraph 8.1.1(1)(d) of Direction 110 states that decision-makers must consider the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available. In the absence of any evidence in relation to this factor, the Tribunal finds that it is inapplicable and weighs neutrally in its decision.
With respect to paragraph 8.1.1(1)(e) of Direction 110, as set out above in these reasons, Mr Mukhtar engaged in frequent, varied and extensive offending from 2003 to 2022. The Tribunal is also satisfied that there was a trend of increasing seriousness in Mr Mukhtar’s offending. It commenced with driving offences, moved to shoplifting and then robbery, and continued with further driving offences, dishonestly obtaining financial advantage by deception, to contravening an apprehended domestic violence order and then to the nine domestic violence offences resulting in the 2022 Convictions. These last offences were acts of family violence and the Tribunal has found that they were ‘very serious’. Accordingly, the Tribunal finds that the matters for consideration in paragraph 8.1.1(1)(e) of Direction 110 weigh heavily against revocation of the Cancellation Decision.
In relation to paragraph 8.1.1(1)(f) of Direction 110, the Tribunal finds that the cumulative effect of Mr Mukhtar’s repeated offending is serious. As set out above in these reasons, from 2003 to 2022, a period of approximately 19 years, Mr Mukhtar committed around 40 separate criminal offences, and has been found guilty of those crimes in Australia.[51] He has been sentenced to multiple separate terms of imprisonment. Mr Mukhtar’s offending has therefore consumed substantial community resources, such as through the involvement of policing and corrective services. There was a trend of increasing seriousness in his offending and Mr Mukhtar offended despite being on parole and, in this regard, having been given the benefit of being at liberty in the community. The Tribunal accordingly finds that this factor weighs against revocation of the Cancellation Decision.
[51] Ibid, pages 36-42.
Furthermore, Mr Mukhtar re-offended since being formally warned in writing by the Minister’s Department about the consequences on his migration status of further offending. In September 2007, following Mr Mukhtar’s conviction in 2006 for the robbery offence, he was sent a letter at Silverwater Correctional Centre regarding the Department’s decision not to cancel his Visa under section 501 of the Act.[52] This notice contained the following formal warning:[53]
Visa refusal or cancellation may be reconsidered if fresh information comes to notice or if Mr Mukhtar incurs a liability on new grounds. Disregard of this warning will weigh heavily against him if his case is reconsidered.
[52] Ibid, pages 109-111.
[53] Ibid, page 109.
While Mr Mukhtar made representations in or around 2023 that he had, to the best of his knowledge, ‘never received any type of warning’, the documentary evidence before the Tribunal indicated that Mr Mukhtar signed an acknowledgement in September 2007 that he had received the Department’s notice. At the Tribunal hearing, Mr Mukhtar said that he signed paperwork upon his release from gaol in 2007, but did not read that material. While Mr Mukhtar may have chosen not to read the document containing the warning, the Tribunal is satisfied that Mr Mukhtar was formally warned about the consequences of further offending on his migration status. Following receipt of that warning in 2007, Mr Mukhtar committed numerous further criminal offences.[54] The Tribunal finds that these matters weigh heavily against revocation of the Cancellation Decision under paragraph 8.1.1(1)(h) of Direction 110.
[54] Ibid, pages 36-42.
For completeness, the Tribunal notes that paragraphs 8.1.1(1)(g) and (i) of Direction 110 are inapplicable to Mr Mukhtar. He has not provided false or misleading information to the Department and his offending was not committed in a country other than Australia. The Tribunal, therefore, finds that these matters are neutral in the determination of this review.
Having regard to the evidence and the Tribunal’s findings in relation to the relevant considerations in paragraph 8.1.1 of Direction 110, the Tribunal finds that this limb of Primary Consideration 1, the nature and seriousness of Mr Mukhtar’s conduct, weighs very heavily against revocation of the Cancellation Decision.
The risk to the Australian community should Mr Mukhtar commit further offences or engage in other serious conduct
The Tribunal turns to consider the risk to the Australian community pursuant to paragraph 8.1.2 of Direction 110, which provides as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen 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:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Given the Tribunal’s above findings about the objective seriousness of the relevant offences committed by Mr Mukhtar, it follows that the nature of the potential harm to the Australian community should he again engage in similar criminal or other conduct would be very serious; it could involve significant psychological, physical and financial harm to members of the community. In this regard, the Tribunal finds that there is a real and ongoing risk of future offending being perpetrated by Mr Mukhtar. To this end, the Tribunal is mindful of paragraph 8.1.2(1) of Direction 110, which states that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of repetition may be unacceptable. The Tribunal is satisfied that the ongoing real risk of future reoffending means that the potential criminal conduct and the harm that would be caused by Mr Mukhtar’s reoffending is serious and the risk unacceptable. The Tribunal finds that these factors weigh heavily against revocation of the Cancellation Decision.
In relation to the consideration under paragraph 8.1.2(2)(b) of Direction 110 regarding the likelihood of Mr Mukhtar engaging in further criminal conduct or other serious conduct, based on the evidence before the Tribunal, it finds that there is a moderate prospect of him reoffending. In reaching this finding, the Tribunal has had regard to the available information and evidence on the risk of Mr Mukhtar reoffending and evidence of his rehabilitation.
The Tribunal finds that Mr Mukhtar’s plea of guilt to the criminal offences that led to the 2022 Convictions indicated an acceptance of responsibility and a willingness to facilitate the course of justice. That weighs in Mr Mukhtar’s favour.
The Tribunal notes that a pre-release report prepared in June 2007 by Corrective Services NSW in advance of the expiration of Mr Mukhtar’s non-parole period for the 2004 offence of ‘Robbery armed with offensive weapon’, stated that:[55]
Mr Mukhtar was assessed by the Level of Service Inventory – Revised (LSI-R) as being in the Medium to High risk needs category. Identified risk factors included; prior criminal convictions, education and employment, accommodation, family relations, alcohol/drug problem and attitude and orientation.
…
Mr Mukhtar appears to have made positive attempts to address his offending behaviour, with the completion of alcohol and other counselling and programs, and is currently completing the SMART program. Notwithstanding the inmate’s failed urinalysis result in December 2006, and as a result jeopardizing his progress to works release, Mr Mukhtar was proactive in addressing his AOD issues. He has received positive work reports and has completed several educational courses, all of which will assist the inmate with his reintegration into the community.
Mr Mukhtar appears to have made positive progress in custody, and to have developed insight into his offending behaviour and drug use. Given the support of his sister and her family upon his release to parole supervision and the above stated response to custody, a release to parole is recommended, upon the following conditions;
·     The offender must not use, be in possession of, or illegally obtain illicit substances.
·     The offender will undertake urinalysis, where facilities are available, at the discretion of his Parole Officer. If it is established by such urinalysis that the parolee has illegally used a drug, it shall be considered a breach of his Parole Order.
·     The offender shall seek assistance in controlling his abuse of drugs and alcohol.
·     To have no contact with the co-offenders…
[55] Exhibit 2, pages 126-132.
Following his release from gaol in September 2007, but after the end of his parole in March 2009, Mr Mukhtar committed further criminal offences from 2010 to 2014, in relation to driving and possessing a prohibited drug.[56]
[56] Exhibit 1, pages 40-41; Exhibit 2, page 139.
In July 2014, a pre-sentence report prepared by NSW Corrective Services, for four counts of ‘Drive motor vehicle during disqualification period’, stated that ‘[a]ccording to the Level of Service Inventory – Revised actuarial risk/needs assessment tool, the offender is assessed as a medium to high risk of re-offending’.[57] The NSW Local Court imposed two concurrent three-month terms of imprisonment on Mr Mukhtar for two of those driving offences and good behaviour bonds for the other two offences, together with the further disqualification of his driver’s licence for a period of two years.[58]
[57] Exhibit 2, page 133-141. Emphasis removed.
[58] Exhibit 1, pages 40-41.
Following Mr Mukhtar’s release from gaol in August 2014, he resumed offending from April 2015, including committing offences in relation to possession of a prohibited drug, attempting to dishonestly obtaining financial advantage by deception and contravening an apprehended domestic violence order.[59]
[59] Ibid, page 40.
In October 2018, a sentencing assessment report prepared by NSW Corrective Services in relation to the offence of ‘Drive motor vehicle during disqualification period – 2^nd+off’, stated that Mr Mukhtar ‘has been assessed at a T1 medium to low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).’[60] Regrettably, after this assessment and conviction for the offence in December 2018, Mr Mukhtar proceeded to commit further offences between 2019 and 2022, including driving offences, possessing a prohibited drug and the nine domestic violence related offences in 2021 and 2022, which led to his 2022 Convictions.[61]
[60] Exhibit 2, pages 149-152.
[61] Exhibit 1, pages 36-39.
In advance of being sentenced for the 2022 Convictions, a sentencing assessment report prepared by NSW Corrective Services in December 2022, stated that Mr Mukhtar ‘has been assessed at a Medium/High risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’.[62] He has not lived in the Australian community since January 2022, more than two and a half years ago.
[62] Exhibit 2, pages 163-167.
On balance, and based on all of the available evidence, the Tribunal finds that at present Mr Mukhtar is not a low risk of reoffending, but is at least a moderate risk of potential future offending which, the Tribunal considers, presents an ongoing and real risk to the Australian community.
Since Mr Mukhtar’s commission of the offences leading to the 2022 Convictions, and following a period of further incarceration and now immigration detention, the Tribunal finds that he has engaged with rehabilitation, demonstrated some level of insight into the causes and impacts of his offending and there are pre-existing and future protective factors available, such as his family and employment. These factors point to a possible interruption to the cycle of regular offending. However, protective features in Mr Mukhtar’s life, such as family, employment and his children, had not previously deterred him from engaging in serious criminal offending. Additionally, Mr Mukhtar would not be on parole and therefore not under some supervision in the community if he was released from immigration detention, in circumstances where the totality of his sentence for the 2022 Convictions recently concluded on 26 July 2024.[63]
[63] Exhibit 2, page 160; Exhibit 1, page 36.
Mr Mukhtar pled guilty for the offences which led to his 2022 Convictions, accepted responsibility for that offending, acknowledged it was wrong, and felt remorse for the victim, being his then domestic partner, which all demonstrate insight. Despite this, in his evidence to the Tribunal, Mr Mukhtar minimised what occurred during that offending, including its extent, he denied twice choking his partner, for which he was found guilty, and why the offending occurred.
Additionally, Mr Mukhtar committed frequent breaches of driving and traffic rules, and judicial orders, including apprehended domestic violence orders, and bail and parole conditions, which the Tribunal finds indicated an ongoing disregard for Australian laws.[64] Despite receiving increasing sentences for these offences since 2003, his engagement with Corrective Services in relation to several orders since 2004 was described in 2022 as ‘borderline satisfactory and superficial’.[65]
[64] Exhibit 2, pages 1-85, 137-138, 142-145.
[65] Ibid, page 165.
In Mr Mukhtar’s Personal Circumstances Form from 2023, he stated that factors involved in his offending included his partner’s miscarriage (or stillbirth), the COVID-19 pandemic restrictions led to drug taking and verbal and physical abuse between the couple.[66] At the Tribunal hearing, however, Mr Mukhtar denied using drugs at the time of that offending in 2021 and 2022. In relation to the risk of reoffending, Mr Mukhtar stated that he would ‘seek professional help for a number of issues’, seek secure employment, which would ‘occupy a good percentage of my time’ and he would be ‘associating with a different circle of friends’.[67]
[66] Exhibit 1, page 98.
[67] Ibid.
The Tribunal notes that paragraph 8.1.2(2)(b)(ii) of Direction 110 requires a decision-maker to take into account evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offending, and notes that decisions should not be delayed in order for rehabilitative courses to be undertaken.
Mr Mukhtar told the Tribunal at the hearing that he had completed multiple educational and rehabilitative courses while in gaol or immigration detention.[68] The documentary evidence demonstrated that Mr Mukhtar was ‘proactive in addressing his AOD [alcohol and drug] issues’ during his imprisonment from 2004 to 2007, had completed alcohol and other counselling and programs, and was ‘completing the SMART [Recovery] program’ before his release from gaol in 2007, although he failed a urinalysis test in December 2006.[69] During his imprisonment from 2022, Mr Mukhtar completed the ‘Remand Domestic Violence Program’ in April 2022 and, while at Villawood, participated in multiple sessions of the drug and alcohol Smart Recovery program from August 2023 to February 2024 and has engaged with STARTTS in relation to trauma counselling.[70] The Tribunal accepts that the courses Mr Mukhtar has undertaken in gaol and immigration detention demonstrates his rehabilitation by the time of this decision and weighs in his favour and revocation of the Cancellation Decision.
[68] Exhibit 2, pages 131-132 and 170-182.
[69] Ibid, page 131.
[70] Exhibit 1, pages 103 and 105 and Exhibit 2, pages 223-235.
In addition, there was evidence that Mr Mukhtar has engaged with psychological services, developed good insight into his offending behaviour, has remained abstinent from illicit substances since his last incarceration in 2022, has not been involved in any reported physical altercations at Villawood, and has reconnected with his father, which are all protective factors. In the Tribunal’s assessment, these matters exhibit a reduced risk of reoffending from the ‘Medium/High risk’ found pursuant to the LSI-R in the report of NSW Corrective Services from December 2022 in advance of Mr Mukhtar being sentenced for the 2022 Convictions. Accordingly, these matters weigh in favour of Mr Mukhtar and revocation of the Cancellation Decision.
There was evidence before the Tribunal of Mr Mukhtar in September 2022 being involved in a fight with another inmate while in gaol for his most recent offending, but no adverse incidents since he has been in immigration detention from July 2023.[71] Mr Mukhtar claimed he acted in self-defence during the fight in gaol and that if you do not stand up for yourself in that environment then you get ‘walked all over’. There was no evidence to conclude that Mr Mukhtar initiated the fight, and it was recorded that he told the attending officer that the other inmate initiated physical contact.[72] For these reasons, the Tribunal finds that the reported adverse incident in gaol weighs only marginally against Mr Mukhtar.
[71] Exhibit 2, page 185.
[72] Ibid.
However, the Tribunal accepts that Mr Mukhtar’s interaction with the criminal justice system and the Visa cancellation process will act as a deterrent against further offending, including noting that he does have some insight into his offending as set out above in these reasons. The Tribunal is satisfied that these matters reduce the risk to the Australian community and weigh in Mr Mukhtar’s favour.
As detailed above in these reasons, Mr Mukhtar has spent no time in the community since his most recent criminal offending in 2021 and 2022, which led to the 2022 Convictions. He commenced serving the associated 30 month sentence in January 2022 and has therefore not been living in the Australian community for over two and a half years. Paragraph 8.1.2(2)(b)(ii) of Direction 110 provides that weight should be given to time spent in the community since the non-citizen’s most recent offending. As a result, the Tribunal does not give this element any weight in favour of Mr Mukhtar in relation to evidence of his rehabilitation.
The Tribunal notes that paragraph 8.1.2(2)(c) of Direction 110 is inapplicable because this proceeding does not involve consideration of whether to refuse to grant a visa to Mr Mukhtar, but rather it relates to whether to revoke the decision to mandatorily cancel his Visa. This element is therefore neutral in the Tribunal’s consideration.
The Tribunal finds that the weight attributable to the aforementioned factors in favour of revoking the Cancellation Decision, based on the likelihood of Mr Mukhtar engaging in further criminal or other serious conduct, somewhat moderate the factors against him under this consideration. The Tribunal again notes its findings regarding the seriousness of the potential harm to individuals should Mr Mukhtar engage in future serious criminal offending. Mr Mukhtar has committed extensive and varied crimes, including violent crimes against women and acts of family violence. If repeated, any of these offences has the real potential to cause serious psychological and physical harm to members of the Australian community. Based on all of the available material, and noting that there was no recent independent psychological assessment of Mr Mukhtar in evidence before the Tribunal, it has found that Mr Mukhtar is currently at least a moderate risk of re-offending. The evidence demonstrates that Mr Mukhtar has undertaken mental health counselling and some psychological treatment, but his psychological conditions persist and have yet to be fully addressed, noting again that decisions should not be delayed in order for rehabilitative courses to be undertaken, in accordance with paragraph 8.1.2(2)(b)(ii) of Direction 110.[73]
[73] Exhibit 2, pages 216-240.

However, the Tribunal accepts Mr Mukhtar’s evidence that he wishes to be involved in his children’s lives in the future. Mr Mukhtar contended that, up until entering custody for those offences, he was K’s ‘primary carer’.[88] There was however no independent evidence regarding these children. Given the Tribunal’s findings regarding Mr Mukhtar’s current risk of reoffending, the Tribunal has doubts about the extent to which he is likely to play a positive parental role in the future, although there are approximately 10 and 15 years respectively until each of the children turn 18. The Tribunal finds that any similar future conduct would have a negative impact on the children. In this regard, there was no evidence that either child has been exposed to Mr Mukhtar’s family violence offending however, based on the Tribunal’s findings, there is a risk that they may be exposed to such conduct in the future if their father is released into the community.
[88] Ibid.
Additionally, S currently lives with his maternal grandmother and K lives with his mother. These people, the Tribunal finds in the absence of any other evidence, already fulfil a parental role in relation to each respective child. Mr Mukhtar did not know either child’s residential address and would not live with either of them if he was returned to the community.[89] Mr Mukhtar gave evidence that there are court access orders in place in relation to his eldest child, S and that he has no contact with the youngest child, K, which is explicable because that child lives with his mother, who was the victim of Mr Mukhtar’s domestic violence offending in 2021 and 2022, shortly after K was born.[90]
[89] Ibid, page 93.
[90] Ibid, page 94.
Mr Mukhtar told the Tribunal that he does not have a good relationship with his children and has not seen them ‘for years’. However, the Tribunal accepts that, if Mr Mukhtar were removed from Australia, he would not have the opportunity to re-establish in-person contact with his children in the community and seek to repair their relationship with him. To this end, they would not get the opportunity in-person to know their biological father or, most likely, his family in the Australian community, attend family occasions, in addition to not being exposed to Mr Mukhtar’s Fijian culture and his religion. While Mr Mukhtar’s children are young and he has had no contact with them for more than two and a half years, the Tribunal considers it not inconceivable that they could establish contact through electronic means if Mr Mukhtar were removed from Australia. There was no evidence to the contrary.
For all of these reasons, the Tribunal is satisfied that the best interests of Mr Mukhtar’s children weigh in favour of revocation of the Cancellation Decision, albeit marginally. That is, non-revocation of the Cancellation Decision is not in the best interests of Mr Mukhtar’s children.
Mr Mukhtar’s nieces and nephews
In Mr Mukhtar’s Personal Circumstances Form from 2023, he listed three nieces and three nephews who were the minor children of his siblings in Australia.[91] He did not list their dates of birth, so the ages of these children was unclear and whether they all remained under 18 years of age at the time of the Tribunal’s decision. However, for the purposes of this consideration, the Tribunal accepts that the six children are all minors. Based on the limited available evidence, the Tribunal finds that the interests of these children did not differ between themselves, there was no such submission, and the Tribunal accordingly proceeds to consider their interests together.
[91] Ibid, page 95.
Mr Mukhtar contended that he was ‘close’ to all six of his nieces and nephews and saw them regularly before he was incarcerated in January 2022.[92] The Tribunal accepts that Mr Mukhtar was close to these children of his siblings when he lived in the Australian community. However, there was no evidence that they remained in contact following Mr Mukhtar’s recent time in gaol and no immigration detention, a period of more than two and a half years. There was also no evidence that Mr Mukhtar could not have contact with these children by electronic means if he were not released into the Australian community. However, the Tribunal accepts that, if Mr Mukhtar was removed, he and the six minor children would not have the opportunity in this country to again see each other to resume their relationship in-person.
[92] Ibid, page 96.
Despite this, due to the Tribunal’s finding about the risk of Mr Mukhtar reoffending, the impact of any likely future conduct has the potential to have a negative impact on the children. Additionally, Mr Mukhtar does not play a parental role in any of these children’s lives; they all have two parents.
Having regard to the very limited available evidence, the Tribunal accepts that the best interests of Mr Mukhtar’s three nieces and three nephews weighs in favour of revocation of the Cancellation Decision, albeit to a negligible extent. That is, the Tribunal finds, non-revocation of the Cancellation Decision is not in the best interests of these minor children.
Conclusion - Primary Consideration 4
Having regard to the evidence and the relevant factors under paragraph 8.4 of Direction 110, the Tribunal finds that the best interests of minor children in Australia weighs in favour of revoking the Cancellation Decision, however the weight attributable under this consideration is marginal.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5(1) of Direction 110 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, paragraph 8.5(2) of Direction 110 provides that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, and relevantly in this proceeding, the Australian community expects that the Australian Government can and should cancel non-citizens’ visas if they raise serious character concerns through conduct constituting acts of family violence and the commission of violent crimes against women. In accordance with paragraph 8.5(3) of Direction 110, the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Moreover, paragraph 8.5(4) of Direction 110 states that Primary Consideration 5 is about the expectations of the Australian community as a whole, and that decision-makers should proceed on the basis of the Government’s views articulated in Direction 110 regarding this consideration, without independently assessing the community’s expectations in the particular case.[93] However, it is still necessary for the Tribunal to assess the circumstances particular to Mr Mukhtar in evaluating this consideration. In this regard, Justice Stewart in FYBR v Minister for Home Affairs said as follows:[94]
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 [now Direction 110] does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[93] See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75].
[94] (2019) 272 FCR 454; [2019] FCAFC 185.
Paragraph 8.5(1) of Direction 110 makes plain that the Australian community expects that non-citizens will obey Australian laws. Mr Mukhtar has breached this trust and has been convicted of numerous criminal offences in Australia over almost 20 years. The Tribunal has found that at least some of Mr Mukhtar’s criminal offending was ‘serious’ and ‘very serious’ as contemplated by Direction 110. To reflect the gravity of that offending, Mr Mukhtar was sentenced to multiple terms of imprisonment, with two separate sentences of imprisonment each being for more than 12 months’ duration.[95] Pursuant to paragraph 8.5(2) of Direction 110, non-revocation of the mandatory cancellation of the Visa may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not continue to hold a visa. The Tribunal has set out above in these reasons the nature of Mr Mukhtar’s domestic violence offences leading to the 2022 Convictions. They constituted multiple acts of family violence and violent crimes against a woman. That conduct, pursuant to paragraph 8.5(2), raises serious character concerns. Mr Mukhtar has put many members of the Australian community at risk and caused them harm due to his extensive and lengthy period of offending while living in this country. Accordingly, the Tribunal is satisfied that Mr Mukhtar’s criminal offending gives rise to the Australian community expecting that the Australian Government can and should cancel the Visa.
[95] Exhibit 1, pages 36-42.
The Tribunal has also found that Mr Mukhtar presents a real and not insignificant risk of reoffending. This also weighs heavily against Mr Mukhtar in circumstances where the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
For these reasons, the Tribunal finds that Primary Consideration 5 weighs very heavily against the revocation of the decision to cancel the Visa, although the overall weight is marginally moderated due to the below matters.
The principle at paragraph 5.2(5) of Direction 110 is, relevantly, that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been ‘participating in, and contributing to, the Australian community only for a short period of time’. For the avoidance of doubt, the Tribunal finds that this stated ‘low tolerance’ is not applicable to Mr Mukhtar because he had participated in, and contributed to, the Australian community for approximately 20 years before his most recent offending and subsequent imprisonment, which is more than ‘a short period of time’. However, for the reasons set out above, the Tribunal finds the weight attributable to this element in favour of Mr Mukhtar and revocation of the Cancellation Decision is marginal because the level of Mr Mukhtar’s participation and contribution in a positive sense does not outweigh the substantial impact of his numerous and varied offending since 2003 to 2022. As previously stated in these reasons, Mr Mukhtar arrived in Australia approximately 23 years ago in 2001 as an 18 year old. Mr Mukhtar soon after commenced criminally offending and continued to do so, amassing approximately 40 separate convictions and being sentenced to multiple terms of imprisonment during his time in the Australian community. He has not lived in the Australian community since the 2022 Convictions, more than two and a half years ago.
Pursuant to paragraph 5.2(6) of Direction 110, Australia ‘may’ afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for ‘most of their life’ or from a ‘very young age’. As previously stated, Mr Mukhtar arrived in Australia aged 18. He is presently 41 years old and has therefore lived in the Australian community for ‘most’ of his life. However, the Tribunal does not accept that he has lived in the Australian community from ‘a very young age’. Having regard to paragraph 5.2(6) in Direction 110, the Tribunal is satisfied that Australia would afford Mr Mukhtar a higher level of tolerance of his criminal conduct because he has lived in the Australian community for most of his life, however the weight attributable towards revocation of the Cancellation Decision is marginal given the expectations of the Australian community discussed immediately above.
Conclusion – Primary Consideration 5
Having regard to all of the aforementioned matters, the Tribunal finds that Primary Consideration 5, the expectations of the Australian community, weighs heavily against revocation of the Cancellation Decision.
Conclusion: Primary Considerations
In concluding its analysis of the primary considerations under Direction 110, the Tribunal has found that Primary Consideration 1, the protection of the Australian community, weighs very heavily against revocation of the Cancellation Decision. It has also found that Primary Consideration 2, family violence committed by the non-citizen, and Primary Consideration 5, the expectations of the Australian community, both weigh heavily against revocation. Conversely, the Tribunal has found that Primary Consideration 3, the strength, nature and duration of ties to Australia, weighs moderately in favour of Mr Mukhtar and revocation of the Cancellation Decision and that Primary Consideration 4, the best interests of minor children in Australia, weighs marginally in Mr Mukhtar’s favour.
Other considerations
Paragraph 9 of Direction 110 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to): legal consequences of the decision; extent of impediments if removed; and impact on Australian business interests.
Legal consequences of the decision
Paragraph 9.1(1) of Direction 110 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has ‘non-refoulement obligations’ in respect of an unlawful non-citizen. Accordingly, the Tribunal acknowledges that, as an unlawful non-citizen, Mr Mukhtar is presently in immigration detention in Australia and, following an adverse decision in this proceeding, liable to removal from this country as soon as reasonably practicable pursuant to the Act and, in the meantime, immigration detention in Australia.
As set out in paragraph 9.1(2) of Direction 110:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
However, as noted in paragraph 9.1(3) of Direction 110, international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
That appeared to be the situation in this proceeding up until Mr Mukhtar’s closing submissions. Mr Mukhtar had not contended that any international non-refoulment obligation was applicable to him and relevant in this proceeding and none of the evidence indicated that there was or could be any non-refoulement claim.[96] However, during closing submissions, Mr Mukhtar told the Tribunal that he had very recently been investigating online about a possible return to Fiji and had read media reports that the new prime minister of that country had said that Fijian Indians were not Fijian and should ‘go back to India’. Mr Mukhtar is a Fijian Indian. He said he ‘don’t have no place to go to’ and Australia was ‘my country’. As a result, the Tribunal asked Mr Mukhtar what the reported comments from the Fijian Prime Minister meant for him. He told the Tribunal that the Prime Minister said that Fijian Indians should return to India, but had ‘got a lot of backlash for that too’. Mr Mukhtar said he was really disappointed in those comments and considered he could be ‘stateless’ as a result. There was no documentary evidence before this Tribunal, including country information from the Australian Department of Foreign Affairs and Trade, regarding the position of Fijian Indians in Fiji, especially those returning to that country and their treatment by officials or more broadly in the Fijian community. Mr Mukhtar did not claim that he would be at risk of a specific type of harm as a Fijian Indian upon return to Fiji. He claimed that he may be considered stateless. The Tribunal is not satisfied, given the lack of information to support that claim and the unchallenged fact that Mr Mukhtar is a Fijian citizen, that he would be or is stateless as a result of the purported comments of the Fijian Prime Minister.
[96] See, for example, Exhibit 1, page 101.
Nevertheless, the Tribunal notes that paragraph 9.1.2 of Direction 110 concerns non-citizens not covered by a protection finding and relevantly provides as follows:
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security considers associated with them. [emphasis in original]

As set out above, Mr Mukhtar made a claim that may suggest that non-refoulement obligations are engaged in relation to him. The Minister submitted that the Tribunal is entitled to, and should, defer consideration of whether Mr Mukhtar is owed non-refoulement obligations because of the terms of Direction 110, including that it is open to Mr Mukhtar to apply for a protection visa.
The decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1) provides that a decision-maker, such as the Tribunal, is required to read, identify, understand and evaluate the representations made by Mr Mukhtar. The majority judgment in Plaintiff M1 also relevantly held that:[97]
Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
[97] At [30].
This reflects the position set out at above in paragraph 9.1.2(2) of Direction 110 that the Tribunal is not required to determine whether non-refoulement obligations are engaged in respect of the person where it is open to them to make an application for a protection visa under the Act. Such an avenue is open to Mr Mukhtar. Accordingly, the Tribunal proceeds on the basis, as it is open to do under paragraph 9.1.2(2) of Direction 110, that if and when Mr Mukhtar applies for a protection visa, any protection claims he has that may give rise to international non-refoulement obligations will be assessed at that time, as required by section 36A of the Act.
That does not mean that the Tribunal ignores the apparent representation or claim made by Mr Mukhtar. The High Court’s judgment in Plaintiff M1 makes it clear that a decision-maker must not do that, but ‘one available outcome’ is the deferral of the substantive assessment of such a claim. This is consistent with the terms of paragraph 9.1.2 of Direction 110. The Tribunal also takes into account that there will likely be considerable delay following any application for a protection visa made by Mr Mukhtar.
As set out above, paragraph 9.1.2(2) of Direction 110 provides that it is not necessary at the section 501CA stage (that is, during this proceeding) to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as the Tribunal has decided to do in this matter.
The High Court in Plaintiff M1 provided the following guidance for this situation:[98]
…[The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
[98] At [37] and [39], footnotes omitted.
The Tribunal does not in this proceeding make a protection finding under section 36A of the Act in relation to what amount to a claim by Mr Mukhtar under international non-refoulement obligations. As stated above, Mr Mukhtar can apply for a protection visa in Australia during which process a determination would be made regarding whether non-refoulement obligations are engaged and whether there is a real chance of him being persecuted or a real risk of him suffering serious or significant harm in Fiji.
Based on the very limited evidence, being Mr Mukhtar’s testimony, the Tribunal does not have sufficient evidence to make a determination about the nature of Mr Mukhtar’s submission to the extent that it may amount to a claim under Australia’s non-refoulement obligations. The Tribunal therefore finds for the purposes of its consideration in this proceeding that Mr Mukhtar’s claim, which may engage international non-refoulement obligations, weighs neutrally in relation to whether to revoke the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2(1) of Direction 110 requires consideration of 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.
Mr Mukhtar is 41 years old and a citizen of Fiji. The evidence before the Tribunal indicated that Mr Mukhtar presently has some health conditions, including mental health issues, asthma and the after effects of the removal of a tumour in his right hip. While there was limited evidence before the Tribunal regarding the treatment prescribed to, or received by, Mr Mukhtar, he stated that he has been prescribed medication for ‘pain relief’, anti-inflammation and asthma.[99] At the hearing, Mr Mukhtar said that he had lost significant muscle around his hip area due to the tumour and associated surgery, which has resulted in difficulty walking and other physical activities, and for which he has been receiving physiotherapy at Villawood.[100] The Tribunal accepts the evidence regarding Mr Mukhtar’s medical conditions.
[99] Exhibit 1, pages 87 and 100.
[100] Exhibit 2, pages 216-236.
While there was no evidence before the Tribunal that Mr Mukhtar could not receive psychological or physiotherapy treatment in Fiji and any other medical support available to all citizens of that country, it accepts that the level of such treatment may be below that available in the Australian community and be unlikely to replicate that treatment Mr Mukhtar is currently offered and receiving at Villawood.
Accordingly, the Tribunal is satisfied that Mr Mukhtar’s health, but not his age, will likely present impediments in establishing himself and maintaining basic living standards if he is removed from Australia. The Tribunal also finds that Mr Mukhtar’s mental health and required treatment will present a reasonably substantial challenge and that therefore these matters weigh moderately in favour of revocation of the Cancellation Decision.
The Tribunal finds that Mr Mukhtar will not experience substantial language or cultural barriers should he be returned to Fiji. He spent his formative years in that country, went to school in Fiji, completed Year 10, and left that country when he was 18. While the Tribunal accepts that Mr Mukhtar feels Australian and that this country is his home given his residence for 23 years, the Tribunal is not satisfied that he would face substantial language and cultural barriers if returned to Fiji. This factor is therefore neutral in the Tribunal’s consideration.
The Tribunal does accept that Mr Mukhtar will likely face impediments in securing economic support, especially in the form of employment and financial assistance, and that this weighs in favour of revocation of the Cancellation Decision. Based on the limited available evidence, the Tribunal accepts that Mr Mukhtar would at least initially have limited economic support available in Fiji, including because of his curtailed physical ability following surgery, although he has been employed in a variety of industries in his working life and he therefore does not appear to have negligible employment prospects. Additionally, the Tribunal accepts that Mr Mukhtar will likely face impediments in establishing social support, including because he has no immediate family in Fiji, except his mother with whom he has not had recent contact.[101] These factors weigh in favour of revocation of the Cancellation Decision.
[101] Exhibit 1, pages 87 and 97.
The Tribunal finds that the aforementioned impediments Mr Mukhtar is likely to face if removed to Fiji weigh marginally in favour of revocation of the Cancellation Decision. In this regard, the Tribunal is satisfied that Mr Mukhtar would enjoy the same rights and support available to citizens of Fiji and would therefore be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens. Having regard to the available evidence and the factors involved in this consideration, the Tribunal finds that the extent of impediments if removed weighs marginally in Mr Mukhtar’s favour and for revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction 110 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that there was evidence of Mr Mukhtar having been employed during the 23 years he has resided in Australia, noting again that he is 41 years old and has had periods of time in gaol and immigration detention. Paragraph 9.3 of Direction 110 relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have any such impact and Mr Mukhtar made no such submission or that non-revocation would have an impact on Australian business interests generally.[102] Accordingly, the Tribunal finds that this other consideration is not relevant and neutral in its decision.
[102] Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 at [29].
CONCLUSION
The Tribunal has found that Mr Mukhtar does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of his ‘substantial criminal record’. Following this finding, the issue for determination by the Tribunal was whether there was ‘another reason’ why the original decision to cancel Mr Mukhtar’s Visa should be revoked. This required a consideration of Direction 110. The Tribunal has found that there is not another reason to revoke the Cancellation Decision.
The Tribunal is satisfied that Primary Consideration 1, protection of the Australian community, weighing very heavily against revocation of the Cancellation Decision and Primary Consideration 2, family violence committed by the non-citizen, and Primary Consideration 5, expectations of the Australian Community, both weighing heavily against revocation of the Cancellation Decision, outweigh those considerations in favour of Mr Mukhtar. Based on its assessment of all relevant considerations, the Tribunal has found that Primary Consideration 3, the strength, nature and duration of ties to Australia, and Primary Consideration 4, the best interests of minor children in Australia, respectively weigh moderately and marginally in favour of Mr Mukhtar and that the one other relevant consideration with any weight in this proceeding weighs marginally in favour of revocation of the Cancellation Decision.
On balance, the Tribunal finds that the relevant considerations weighing in favour of revocation of the Cancellation Decision do not outweigh the three relevant primary considerations, being the protection of the Australian community, family violence committed by the non-citizen and the expectations of the Australian community, which all weigh against revocation of the Cancellation Decision. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 110, Primary Consideration 1, the protection of the Australian community, is generally to be given greater weight than other primary considerations and that primary considerations should generally be given greater weight than other considerations. Accordingly, for all of the above reasons, the Tribunal finds that there is not ‘another reason’ why the original decision to cancel Mr Mukhtar’s Visa should be revoked.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958.

I certify that the preceding 199 (one hundred and ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.........................[SGD]........................................
Associate
Dated: 15 August 2024

Date(s) of hearing:

Date final submissions received:

30 and 31 July 2024

18 July 2024

Applicant: By Microsoft Teams

Solicitor for Respondent:

Ms Gabrielle Gutmann, Minter Ellison Lawyers