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

[2024] AATA 774

Nadeem and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 774 (21 March 2024)

Division:GENERAL DIVISION

File Number:          2024/0086

Re:Taimoor Nadeem

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R. Maguire

Date of decision:                   21 March 2024

Date of written reasons:        17 April 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms decision made on 19 December 2023 by a delegate of the Respondent to not revoke the mandatory cancellation the Applicant’s Class BS Subclass 801 Partner visa.

............[SGD].........

Member R. Maguire

Catchwords

MIGRATION – non revocation of a mandatory cancellation of visa- where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where criminal offending involved multiple breaches of protection orders and commission of family violence against multiple victims – where Tribunal finding the Applicant’s recidivist risk remains unchanged- where Tribunal finding that factors in favour of revocation outweighed by factors against revocation- Tribunal finding there is no another reason to revoke the mandatory cancellation decision- decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Member R Maguire

17 April 2024

1. On 21 March 2024, the Tribunal affirmed the decision under review in this matter. The Tribunal now publishes its reasons for doing so.

2. By application made on 6 January 2024 the Applicant seeks the review of a decision made by a delegate of the Minister (“the Respondent”) made on 19 December 2023 pursuant to  

   
   

   s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke a decision under

   
   

   s 501(3A) of the Act to cancel the Applicant’s Class BS Subclass 801 Partner visa (“the Visa”). Notice of this decision was delivered to the Applicant on 28 December 2023[1].

   [1] Ex R1 G4 p 42.

3. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (“the Regulation”) (28 days in accordance with reg 2.52), and the decision-maker determines that the applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.

4. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under

   
   

   s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:

   1For the purposes of the character test, a person has a substantial criminal record if:

   ...

   (c)the person has been sentenced to a term of imprisonment of 12 months or more;...

5. The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.

6. The Applicant is a 30 year old citizen of Pakistan. He entered Australia on 9 July 2012 on a Higher Education Sector visa (subclass 573), and subsequently held a Partner visa (Class BS)(Subclass 801) visa.

7. The Applicant has a substantial criminal record in consequence of being sentenced to an aggregate term of 16 months imprisonment on 22 March 2023.[2] This sentencing led to the mandatory cancellation of the Applicant’s Visa on 20 April 2023 pursuant to s 501(3A) of the Act.[3] Notice of this decision was given to the Applicant by hand, together with a copy of his National Criminal History Check released on 18 April 2023.[4]

   [2][2] Ex R1 G7 p 60.

   [3] Exhibit G1, pp 71-76.

   [4] Ex R1 G7 p 59-68.

8. In accordance with reg 2.52(2)(b) of the Regulation the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[5]

   [5] Exhibit R1 G11, pp 98-126.

9. As noted above, on 19 December 2023, a delegate of the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under

   
   

   s 501(3A) of the Act. Following receipt of notice of this decision, the Applicant made the present application to this Tribunal for a review of that decision.

10. The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.

11. By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1) of the Act, the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day was 21 March 2024. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.

    ISSUES

12. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    4The 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.

13. The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which the Tribunal is required to read, identify, understand and evaluate.[6] 

    [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

14. If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[7]

    [7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].

15. As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and, if not,

    ·whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.

16. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

17. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.

18. The Applicant concedes that he does not pass the character test in consequence of his having a substantial criminal record within the meaning of s 501(6)(a) of Act having regard to s 501(7)(c) of the Act. [8]

    [8] Ex A1, p 2 [12].

19. The Tribunal finds that he does not pass the character test,[9] and the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

    [9]  As was conceded by the Applicant in the hearing Transcript Day 1 p 4 lines 31-32.

20. The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original cancellation decision should be revoked.

    Is there another reason for the revocation of the cancellation of the Applicant’s Visa?

    Ministerial Direction No. 99

21. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.

    [10] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.

22. Relevantly, the Direction states that:[11]

    ‘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.’

    [11] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.

    .

23. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia 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.

    2Non-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.

    3The 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.

    4Australia 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.

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

    6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

24. Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

25. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

26. Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

27. In considering issues of family violence, regard must be had to both s 5G of the Act which broadly defines “Relationships and family members”, as well as para. 4(1) of the Direction which defines “member of the person’s family”, noting that both definitions are inclusive.

28. Section 5G of the Act is as follows:

    5G  Relationships and family members

    1For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

    2For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:

    (a)a de facto partner of the person;

    (b)someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;

    (c)anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.

    This does not limit who is a member of a person’s family or relative of a person.

29. Para. 4(1) of the Direction which defines “member of the person’s family” includes present and former intimate partners:

    ‘member of the person's family, for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.’

30. The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]

    ‘…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’

    [12] [2018] FCA 594 at [23].

31. The Tribunal now turns to addressing these considerations.

    Documentary evidence before the Tribunal

32. In reaching its decision the Tribunal has taken into account the evidence and submissions at hearing and all of the documents listed in the Exhibit Register which is annexed to these reasons.

33. The hearing was conducted with the assistance as required of an interpreter of whom the Applicant approved.

34. The Act defines “crime” in s. 5 to include any offence. This means traffic offences are crimes, and traffic convictions are criminal convictions for the purposes of the Act.

35. This Applicant has a long and appalling history of traffic offending. He has been found guilty or convicted of driving a motor vehicle whilst his licence was suspended on three occasions, driving with a middle range prescribed alcohol concentration, five offences of driving whilst disqualified, twice stating a false name or address to police, not stopping at a stop sign, driving recklessly, and not stopping in a police pursuit.

36. The Applicant also has a very poor history of drug offending, having been dealt with for possessing a prohibited drug on four occasions.

37. The Applicant has twice been sentenced for Stalk/intimidate intend fear physical etc harm (domestic). He has also been sentenced for being in possession of goods suspected of being stolen (including several driver’s licences) on two occasions, destroy or damage property, and entering enclosed land without lawful excuse. He has been sentenced for common assault (DV).

38. The Applicant has been dealt with via the full gamut of sentencing options: a bond; a 12 month conditional release order (which he breached), driving disqualifications, an alcohol interlock program, fines, and imprisonment.

39. On 18 May 2022, at 2:22 am, whilst in custody, the Applicant was served with an enforceable DVO protecting a woman (who shall be referred to as “SW”, which prohibited him from approaching or contacting her other than through a lawyer, approaching or being in her company within 12 hours of taking alcohol or illicit drugs, or going within 1 kilometre of where she lived or worked. The DVO had its origins in the fact that SW posted photos of some bras she had purchased on Snapchat, and the applicant responded to her admonishing her for this, and told her he was coming to her location to create a scene and stop her. He kept sending her Snapchat messages about coming to get her, and sent her photos of himself outside her premises. SW blocked the applicant on Snapchat, and the applicant approached the front door or the premises, trying to get into contact with her.

1. He committed some 22 offences during the currency of a ten month Community Correction Order which commenced on 21 June 2022. Between 20 April 2022, and 22 March 2023, the Applicant committed 14 contraventions of a DVO, 13 of which breaches were dealt with on 22 March 2023 by Magistrate Robinson in the Parramatta Local Court in New South Wales.

2. These breaches included threats to SW’s mother that he would bury SW and her mother would not be able to find her body. He also entered premises occupied by SW and her mother and removed some of SW’s property. He threatened to “get” SW’s family and called her on a private number so that she would answer the call. The Magistrate considered that these were aggravating factors.

   Evidence at hearing

3. The Applicant conceded the accuracy of his offending and other conduct as recorded in the G documents[13], and expressed remorse for his past conduct, and offered assurances that he would not repeat it.

   [13] Transcript Day 1 p 9 lies 35-40.

4. The Applicant said that he came to Australia on a student visa. He completed a Diploma of Business, and enrolled in a Bachelor of Business, got half way through it and abandoned it when he got married. He then did a range of other unrelated courses, at a lower level of study.

5. He married a woman who shall be referred to as JK, in 2015, one month after meeting her. He met her while working at McDonald’s, and he proposed to her five days after meeting her. He said that prior to this he had a relationship with a Tongan woman, who cancelled their own wedding arrangements in September five days before the date of the wedding. He has a nine year old son from that relationship but only spoke to him for the first time not long before the hearing.

6. The Applicant and JK had a wedding reception during a six week trip to Pakistan, and a daughter in January 2016 who shall be referred to as D1, and with whom he described having a close relationship. They had a son who shall be referred to as S1 in June 2016. The Applicant became emotional when he said S1 was taken away from him two years later. The Tribunal offered the Applicant a break, which he did not take, and invited his counsel to speak up if she considered her client needed one.

7. The Applicant said he had not seen his children since December 2021. He had previously walked out of the house in December 2020 following an argument.

8. Around December 2021 he was arrested and an AVO issued. He had not seen or embraced his children since about January 2022. Soon after he was served with divorce papers.

9. The Applicant was referred to, and verified his statement[14] wherein he disclosed “minor involvement in selling prohibited drugs” and said with regard to supplying cannabis[15]:

   ‘I mentioned there the substance and illegal activities.  For example, like, I was using cannabis or I was passing it to my friends or, like, helping friends to get it, like, from – you know, they want to buy it, so I was passing it to my friends as well or anybody who wants it.’

   (Tribunal emphasis)

   [14] Ex A2.

   [15] Transcript Day 1 p 31 lines 11-14.

10. The Applicant said that he had undertaken five rehabilitation courses whilst in Parklea Jail, and made reference to his handwritten apology to the court for his conduct[16] The Tribunal notes that in this document he referred to his father having been murdered by his uncle (singular) over a family feud. No reference was made to the involvement of any other person, or of any organ harvesting. He expressed sorrow for his “horrible and shameful offences”. He blamed cannabis for leading him to his offending. He also claimed “I have never stolen or been involved in crimes before.”

    [16] Ex A24.

11. The Applicant described his work in prison, and the rehabilitation courses[17] he had undertaken in detention, and his engagement with a friend who was a private psychologist. If released he would see his GP to seek referral to a proper professional.

    [17] Ex A3, A4, A7, A14, A21.

12. The Applicant acknowledged that he had been the subject to AVOs in respect of five different people, his ex-partner, her mother and father , , his new ex-girlfriend (SW) and his housemate.

13. The Applicant spoke of his plans to fight to see his children and provide a home for them if they visited.

14. The Applicant said SW had “a bad side” and “a bad past” which involved self-harming and suicidal conduct, and mental health issues, which he became aware of during their relationship. She had called the police on him a couple of times, and been arrested herself for mental health and self-harming. After he was arrested, she had gone to the police and made 25 AVO complaints “which were false, most of them at least. Like I didn’t even know they exist’.[18]

    [18] Transcript Day 1 p 38 lines 10-25.

15. It was conceded that SW was a member of the Applicant’s family for the purposes of the Family Violence provisions of the Direction.[19]

    [19] Transcript Day 2 p 28 lines 27-28.

16. The Applicant gave evidence of his involvement in various community, sporting, and Pakistani political activities, and his associated ties to members of the community, and the Tribunal was referred to the various statements at exhibits A8 to A13.

17. The Applicant said that he had a lot of close friends back in Pakistan, but only one close relative, his mother. His ex-wife would prevent their children visiting him in Pakistan. It emerged from the Applicant’s evidence that he had had no contact with his children since his arrest, and it was likely that his ex-wife would resist any efforts he made to have contact with them even after the current AVO expired.

18. The Applicant said that his life would be in danger if he returned to Pakistan because of his political affiliations.

19. The Applicant continued to assert that he suffered mental health conditions of depression and anxiety. It was put to his counsel that the evidence of Dr David Lienert, Psychiatrist[20] was to the effect that he suffered no mental illness. Ms Lewis acknowledged the absence of any expert report that diagnosed the applicant with mental health conditions[21], and agreed that there was no professional assessment that he had ever suffered any mental illness at all.[22]

    [20] Ex A1 p7.

    [21] Transcript Day 1 p 46, lines 39-41.

    [22] Transcript Day 1 p 47 lines 19-23.

    Cross examination

20. In cross-examination, the Applicant told Mr Fyfe that he came to Australia with the intention of living the rest of his life in Australia.

21. He had had three romantic relationships in Australia. The first was with “an islander girl” who shall be referred to as RE, who gave birth to their son after they had broken up. She cancelled their wedding arrangements five days before they were to be married. He agreed that he did not have any relationship with that child who now lives in Tonga.

22. He had proposed to JK on their first date[23]. When asked about his motivations in doing this, he gave a long, rambling, garbled answer. He ceased study shortly after meeting JK and applied for a Partner visa eight or nine months after meeting her. He denied that he had rushed into the relationship for the purpose of obtaining that Visa, and that he was prepared to do whatever it took to remain in Australia.

    [23] Transcript Day 1 p 51 line 46.

23. The Applicant said there was evidence that JK was cheating on him, and they broke up in December 2021. When asked if there were other issues leading to the break up, the following exchange occurred[24]:

    [24] Transcript Day 1 p 54 line 45- p. 55 line 26.

    ‘MR FYFE: And you said that there was some evidence of cheating, is that correct, on her part?

    APPLICANT: Yes, that’s correct.

    MR FYFE: Was there anything else that led to the breakup?

    APPLICANT: Nothing.

    MR FYFE: I mean, she started cheating on you. From your perspective, did that come out of the blue, or were there issues in your relationship before that?

    APPLICANT: No, no. There were issues too, obviously, like issue earlier I told you guys before that the respect issue. She never respected me, she never gave me the status of husband, she was never – she used to call me names, and she used to swear at me as well, and I haven’t even heard her swearing at our parents, which is very bad in our culture. So that was the main issue that I would argue with her every time in front of the kids, which is not good for the kids. And then the other reason, like, when I saw her bashing the kids behind my back physically, that wasn’t good too. So those were the reasons why (indistinct) or argue every day, and that day that I came to just see my kids for 10 minutes, which was normal, we were doing it nicely before that, you know, but now she want to marry the guy and the father (indistinct), and they want me to move me out of the picture, so they use that (indistinct). 

    MR FYFE: You said just now that she wasn’t respecting your position as husband.  What does that mean?

    APPLICANT:  Like, I don’t know. She never even respected her father too.  Like ‑ ‑ ‑ 

    MR FYFE: Yes, but what does it mean – husband, what does that mean?

    APPLICANT: ‑‑‑Like, husband, like when you go back to your house you always say, ‘Hi honey, how are you?  And how was your day?’, and (indistinct) respect.  I was (indistinct) and F words, and shut-up words, and disrespectful words, or not even my name, you know, so not even my nickname.  So I never felt that affectionate, or that love coming from her as a partner or as a wife too sometimes – most of the times.

    MR FYFE: Okay.  I understand that’d be quite frustrating and must have made you angry. Is that fair to say?

    APPLICANT: Yes, all the time, yes, it did.’

24. The Applicant was questioned in relation to the police report at Ex R3, p.3 of the incident on 16 January 2022. The report included references to JK’s mother who shall be referred to as JKM, and her father, who shall be referred to as JKF. Subject to these alterations by the Tribunal, the relevant extracts from this report are set out in the paragraphs which follow.

25. The report recorded that about 1pm that day, JKM received 24 missed calls from the Applicant, with whom she did not wish to speak, and who texted her causing her to feel threatened and intimidated:

    ‘… if I don’t talk to my kids in 5 minutes, thn (sic) I am bloody coming to [address redacted] wait n watch.’

26. The report further recorded that at about 1:45 pm that day, JK received numerous calls from the Applicant which she declined to answer. She then received a text message from him stating:

    ‘Bitch, call me in 2 minutes otherwise everyone gone today ur (sic) dad mum [name of person redacted]  ur whole khandaan.’

27. The report recorded that JK had become afraid, as the Applicant had threatened her whole family. JK received a further text from the Applicant in which he stated “Answer now Bitch,” Otherwise ill burn JKM’s house”. The report further recorded that JK continued to ignore the Applicant’s continued calls and messages.

28. The Applicant confirmed that “khandaan” meant family, and that he had been threatening to kill JK, her parents and whole family because he was angry because they were stopping him from seeing his children[25].

    [25] Transcript Day 1 p 56 lines 22-32.

29. The Applicant acknowledged threatening to burn the house down when he thought his wife and children were in it, but complained that the police report only reported one side of the story, not his[26]. The Applicant also complained that he got angry because they “sneakily called the cops” rather doing that in front of him as they had previously[27].

    [26] Transcript Day 1 p 58 lines 10-17.

    [27] Transcript Day 1 p 58 line 40 – p 59 line 15.

30. The Applicant acknowledged that this incident led to the making of an AVO which prevented him from contacting his wife and that he understood the implications of doing so. He accepted that he had been warned about not engaging in any further acts of domestic violence[28].

    [28] Transcript Day 1 p 59 lines -39.

31. The Applicant admitted calling his wife “by mistake” on 8 April using his own phone set to private so that it would not show his number, and that she would be the person who answered. He claimed that he was “not 100% sure” that this was a direct breach of the AVO[29].

    [29] Transcript Day 1 p 59 line 46- p 60 line 16.

32. The Applicant was questioned regarding SW. Mr Fyfe referred to Ex R2, S8, which was a police fact sheet pertaining to the Applicant’s having breached a non-contact condition of a bail order whilst on remand for a charge of breaching a non-contact condition of an AVO in favour of SW. The police informant was described as being SW’s carer.

33. It was put to the Applicant that SW had a personal carer. He responded that she had no carer at his place, and he did not know “that she lives with a carer”. He confirmed that he had been seeing SW for six or seven months and had become aware that she had mental health issues causing suicidal and self-harm behaviours. He claimed not to have known that she had a carer until before his arrest.[30]

    [30] Transcript Day 1 p 61 line 20 – line 40.

34. The Applicant told Mr Fyfe that his relationship with SW ended around June 2022. When asked to explain the how the AVO came about in May 2022, the Applicant’s answer focussed on SW’s “bad history”, and conduct including her claimed breach of the AVO and arrest. His only reference to his own conduct was that he was trying to give her “a good life”.

35. The Applicant was referred to Ex R1 G8 p 70, the sentencing remarks regarding his breaches of the AVO.  The Applicant had sent a series of messages to SW complaining that she had posted photos of her new bras on Snapchat, whereupon she blocked him. The Applicant claimed the breach arose in circumstances which were partially SW’s fault for continuing to post pictures he did not like[31]. He agreed that he had sent SW a message that he was coming to her residence to stop her. He claimed he was trying to stop her from doing things which would not have been allowed at her accommodation.

    [31] Transcript Day 1 p 64 lines 21-32.

36. The Applicant was questioned regarding his offence of assault occasioning actual bodily harm. He blamed the victim of his assault for being drunk and said he had warned him three times. He said “we just started to punch together … because we were friends, you know, we hit similar way, we bash together same way”.[32] Detailing this incident, the Applicant said “They punched me as well. They probably bite me …”[33]. When challenged by the Tribunal as to the evidence of this, the Applicant conceded he had not been bitten.[34]

    [32] Transcript Day 1 p 67 lines 19-22.

    [33] Transcript Day 1 p 68 lines 4-5.

    [34] Transcript Day 1 p 68 lines 20-22.

37. Mr Fyfe pointed out to the Applicant that before the Magistrate, he was legally represented, and there had been no mention of violence towards him or that he had been bitten in the incident. He agreed that this was correct.[35]

    [35] Transcript Day 1 p 69 lines 14-15.

38. The Applicant disputed that he had dragged or pulled SW on the floor during this incident, although he agreed that the submissions made to the court were on his instructions.[36] The Applicant then accepted that he had pulled SW back into the house against her will but did not accept that this amounted to an assault.[37]

    [36] Transcript Day 1 p 70 line 22 – p 71 line 8.

    [37] Transcript Day 1 p 71 line 14 – line 26.

39. The Applicant became upset giving this evidence and the Tribunal offered him a short break which he declined. The Tribunal then invited Ms Lewis to seek a break on her client’s behalf, which she did, and the Tribunal adjourned for a period to allow the Applicant to recover his composure.

40. Upon resumption, the Applicant agreed with a suggestion by Mr Fyfe that the underlying trigger to the episodes of violence and domestic violence had been his anger.[38]

    [38] Transcript Day 1 p 73 line 2.

41. The Applicant told Mr Fyfe that he has completed a five hour anger management course[39] which had helped him “a little bit” but said he would benefit from more[40]. The Applicant doubted he would lash out angrily in the face of frustrating news in future, and expressed certainty that he would not raise his voice or threaten a woman in future.[41]

    [39] Ex A4 dated August 7, 2023.

    [40] Transcript Day 1 p 73 lines 10-20.

    [41] Transcript Day 1 p 73 lines 22-33.

42. The Applicant was referred to an incident in immigration detention[42] on 28 December 2023 where he was described as having used abusive and aggressive behaviour when he had yelled and sworn at a female when he received visa related news. The Applicant denied he was angry and said he was just disappointed.[43] He agreed that whatever he learnt in the anger management course he did not implement that day.[44]

    [42] Ex R3 p 148-149.

    [43] Transcript Day 1 p 74 lines 34-35.

    [44] Transcript Day 1 p Transcript Day 1 p 75 lines 22-25.

43. The Applicant accepted that there were other decisions affecting his life which might make him angry, such as relating to his divorce and separation from his children.[45]

    [45] Transcript Day 1 p 75 lines 44-48.

44. The Applicant was referred to his complaint to the ombudsman that his children were being forced to accept a new father figure whom he said he did not like. He said if the children ultimately chose that man over him he would be accepting of it, and denied it would make him angry.[46]

    [46] Transcript Day 1 p 76 line 3 - p 77 line 11.

45. The Applicant told Mr Fyfe that his traumatic past and the death of his father was the main reason for his offending but agreed that his father died in 1999 and his offending did not commence until 2017. It was put to him that it might be hard to accept that what happened when he was five took 18 years to manifest itself in criminal conduct, and he responded:

    ‘I would say in that way, like, back in my country if I wouldn’t - I would simply (indistinct) I would have probably covered this past more much more (indistinct).  So but at least I came here because I had again no one there, no father, no parents, no family there.  So I was learning, and I had both good companies, bad companies, good friends, bad friends.  I went into the good (indistinct) many times most of the times, and sometimes unfortunately I went to bad company as well and I went to that side as well.’

46. The following exchange then occurred between Mr Fyfe and the Applicant[47]:

    [47] Transcript Day 1 p 78 line 26 – p 79 line 11.

    ‘MR FYFE: What I'm suggesting to you though is that really, the reasons for your offending probably don’t have much to do with what happened back 1999 seeing as you managed to go along for?

    APPLICANT: I guess there’s some of the charges were and some of the charges were not, you’re right.

    MR FYFE: All right.  But?

    APPLICANT: The domestic orders is not related to that father’s trauma, I understand that, yes.

    MR FYFE: Now, while we’re on the topic of trauma, do you accept that witnessing domestic violence - that the children have witnessed domestic violence, that that might traumatise them?

    APPLICANT: Definitely. That’s right.

    MR FYFE: And do you accept that you committed acts of domestic violence in front of your children?

    APPLICANT: Yes, I believe (indistinct). There’s a reason behind that, but yes, unfortunately it happened.

    MR FYFE: And that they might be traumatised as a result?

    APPLICANT: That’s correct too.

    MF FYFE: Do you accept that this sort of behaviour - that witnessing this sort of behaviour is not in the children’s best interests?

    APPLICANT: I accept that. It’s not good for ‑

    MR FYFE: And - sorry, go on.  I didn’t mean to interrupt?

    APPLICANT: Sorry, yes, it’s not good for the kids.  Yes.

    MR FYFE: And it’s not good for them to be around someone who would do that sort of thing?

    APPLICANT: But that only happened only once, and previously since days before that, it was never happened and I was good, and then it was happened because of the mother cheat.

    MR FYFE: Well, it hasn’t happened in some time because you’ve been in prison or immigration detention, but if it were to happen again, that wouldn’t be in their best interests, would it?

    APPLICANT: That’s correct.  That’s - I agree with that, yes.’

47. Questioned regarding his drug use, the Applicant said his main drug was cannabis, but he had used some “party drugs”.

1. The Applicant was cautioned regarding self-incrimination, and then questioned in relation to his use of “party drugs”.[48]

   [48] Transcript Day 1 p 79 line 29 – 45.

2. The Applicant told the Tribunal that his use of ice was “twice max”[49]:

   ‘MR FYFE: And you say that you only used ice at a party once, is that correct?

   APPLICANT: That’s correct, yes, or twice max, yes.

   MR FYFE:  Well, which one is it?

   APPLICANT: Or twice max.’

   [49] Transcript Day 1 p 80 lines 33-39.

3. The Applicant was questioned about his conviction for the possession of scales[50]:

   ‘MR FYFE: Okay. And also, part of that conviction was the possession of scales.  Why did you have scales on your item for?

   APPLICANT: So I have been honest about that. Scales, I used to use, when I used to smoke, myself, for cannabis. I never used to trust the dealer. So they’re underweight, or give you under the bags – under the scales, you know.  So I used to weigh for myself, that it – they gave me the right quantity.  So that was one – that was my mistake, sorry.

   MR FYFE: And you said in your statement that you were do some minor drug dealing as well.  Is that correct?

   APPLICANT: It wasn’t properly, like, drug dealing. As I mentioned before, I was just – I’ve been my friends’ dealer on cannabis, and – oh, just sometime. And, like, they needed – emergency – or didn’t have it, so they asked me – they called me.  So I just passed it on. Gave them a little bit from my stuff. Gave it to them.  Just for.

   MR FYFE: Is that why you had the scales, partly, to weigh out the cannabis you were giving to your friends?

   APPLICANT: No.  This – this scale was for myself, to weigh the bags on.  Because I used to get, like, quarters or ounces.  So I just make sure they’re right on the scales.  And then, yeah – oh, sometimes, when I have to give it to friends.  So, yes, I have to measure and give them on scale as well.  But I’m not – I’m not giving them – bad – bad people do that, you know.  And I know, now, that shit was wrong.’

   [50] Transcript Day 1 p 81 lines 25-45.

4. The Applicant told the Tribunal that he had been using cannabis for 10 years. The Applicant accepted that he had not yet been able to demonstrate an ability to abstain from cannabis use in the community.

5. The Applicant conceded that he had not had anything to do with his children for 28 months. He had not had any contact with his eight and a half year old daughter since her sixth birthday, and he had not had anything to do with his four and a half year old son since his second birthday and been able to remember things. Their mother had been with them through this period, and her partner seemed to be okay. The Applicant accepted that his children are probably doing okay[51].

   [51] Transcript Day 1 p 83 line 40 – p 84 line 46.

6. The Applicant told Mr Fyfe that even if he got his Visa back, he fully understood and agreed that there was a good chance that he will not get to have contact with his children[52]. A long distance relationship from Pakistan would be worse than a relationship in Australia with limited contact. He agreed that if he remained in Australia, his degree of future contact with his children was “up in the air.”[53]

   [52] Transcript Day 1 p 85 line 38 – 40.

   [53] Transcript Day 1 p 86 line 28-30.

7. The Applicant maintained that he had “heaps” of friends in Australia, although none had been to visit him. Apart from his children he had no family in Australia. His relationship with his parents in law had finished.

8. The Applicant confirmed that he had travelled to Pakistan for a month and a half, two or three months after his marriage for the wedding reception and visited his mother in his hometown. His mother had relocated away from his uncles over 20 years ago, and they had not been in touch with her since[54].

   [54] Transcript Day 1 p 89 line 40 – p 90 line 1.

   Day 2

9. On the second day of the hearing, the Tribunal put a number of questions to the Applicant[55]:

   [55] Day 2 Transcript p 2 line 24-47.

   ‘MEMBER: But can I take you to the terms of the AVO which was issued against you in respect of your wife. I’ve read through that and I thought it contained some very comprehensive warnings in regarding to circumstances which could give rise to your breaching of your obligations under it. And it also gave a fairly clear statement of the legal consequences of breaching those obligations.  Do you agree with that?

   APPLICANT: Yes, I do with that.

   MEMBER: Yes, very well.  Thank you. Now on 16 January 2022 had you taken alcohol or illicit substances that day?

   APPLICANT: No, Your Honour, I didn’t.

   MEMBER: Okay.  But you strongly believe the children were in the house, in fact it’s because you wanted to see them that you were there, isn’t it?

   APPLICANT: That’s correct.

   MEMBER: Well I’m at a loss to understand how having seen your father suffer severe burns and later die in hospital, how you could threaten to set fire to a house with people in it, and particularly your own children, when you were sober.  Can you comment on that?

   APPLICANT: Your Honour, like, my father-in-law triggered me and because it went to the same trauma.  So in angrily I said it by mistake, you know. Otherwise I never intend to or never mean to say that in general in my whole life.

   MEMBER: Yes, but you made death threats – a number of threats, didn’t you, that day?

   APPLICANT: I understand.  Yes, Your Honour.’

10. The Applicant confirmed his evidence that apart from DVOs he had only traffic offences. The following exchange then occurred[56]:

    [56] Transcript Day 2 p 5 line 25 – p 6 line 41.

    ‘MEMBER: Well is that accurate?

    APPLICANT: Sorry, what was that?

    MEMBER: Is that true?

    APPLICANT: I think so, yes, that’s true.

    MEMBER: Well can I suggest to you it’s not.  And the reason I’m raising this with you, I’ve got a few issues with your credibility, okay?  And I’m trying to put you on notice about a range of matters that I may take into account in considering your credibility.  On the material before me you were charged with giving a false name to police.  You were charged with drug possession and possession of property suspected of being stolen.  Namely several drivers licences, as well a supply of drugs.  And you’ve also blamed bad company for your offending, but there’s nothing in any of the offending that I’ve read that involves any other company other than yourself.  Do you want to comment on that?

    APPLICANT: That’s correct.

    MEMBER: That’s correct, is it?

    APPLICANT: Like they were mostly my friends, same boys, housemates and best friends, that’s correct.  Like I didn’t mention anybody’s name,

    MEMBER: But you do have those offences, don’t you?

    APPLICANT: Yes.  That’s correct, Your Honour.

    MEMBER: Yes, okay.  Now you’ve also said that you witnessed your father’s death, but you didn’t strictly speaking witness his death. You weren’t there when he died, were you?  You were at home with your sisters?

    APPLICANT: No, that morning – yes, I was at home that morning when he passed away.

    MEMBER: Okay. Well what’s your source of information that your uncle has murdered him and that his organs were harvested?

    APPLICANT: My uncles themselves and my mum.

    MEMBER: Your uncles told you that they murdered him, do they?

    APPLICANT: That’s correct.  Because they didn’t directly told me.  They came following there with a gun to my house and pointed the gun on my mum’s head on the door where I was standing and listening to the whole thing.

    MEMBER: Yes, okay?

    APPLICANT: So my mum mentioned that again.

    MEMBER: Okay, so ?

    APPLICANT: And she didn’t go with them so she (indistinct) separately.

    MEMBER: You say they all confessed that and your mother confirmed it.  Very well.  Thank you very much.  Now, Ms Lewis, there’s evidence that suggests that SW suffered from an unnamed mental illness which regularly led to her attempts to self harm.  It seems to me that she’s a vulnerable person for the purposes of paragraph 8.1.1(1)(b)(ii) of the direction.  Now if I make any finding regarding her, it sounds like I should be including her as a vulnerable person, shouldn’t I?

    MS LEWIS:  If I’m reading it correctly, Member, it says harm committed against vulnerable members of the community such as the elderly and the disabled before a government representative of officials.  Is that that paragraph?

    MEMBER:  Yes, that’s correct.  Surely she was disabled in consequence of mental illness, wasn’t she?

    MS LEWIS:  I need to think about that, Member and address that in closing submissions, if that’s all right.  Because from the outset I would not call her a vulnerable member of the community for the purposes of this paragraph.

    MEMBER:  Yes.  Very well.  Well I’d like you to address me on that, please, because these are all issues which I’m contemplating taking into account in my reasons, okay?’

11. Following re-examination, closing submissions were received.

12. Regarding Primary Consideration 1, Ms Lewis submitted that the Applicant’s conduct to date was quite serious, as it involved family violence as well as domestic offending. She referred to the courses he had undertaken, and his intention to undertake more anger management courses. The Applicant had taken positive steps to change his drug use and habits.

13. SW was accepted as a family member for the purpose of the Direction, but not as a vulnerable person. The Applicant had expressed remorse and committed not to reoffend. He accepted that his conduct constituted violence, family violence, and violence against women, and was committed to change.

14. Primary consideration 1 weighed against revocation.

15. Regarding Primary consideration 2, Ms Lewis acknowledged the Applicant’s family violence offending, and submitted that the Applicant had been truthful in relation to his DVO breaches. He had accepted responsibility and the impact on his children.

16. Regarding Primary Consideration 3, Ms Lewis submitted that the Applicant had never been cautioned in relation to his student visa. He had formed strong ties to Australia over 12 years, and had two resident citizen children, and a third non-resident citizen child. He had participated in many community events and had formed strong ties with many Australians. She referred to the letters of support from community members and friends of the Applicant describing his conduct as out of character. The Applicant had contributed to the Australian community in various roles and had good employment and tax records. His two Australian citizen children represented a strong tie.

17. Regarding Primary Consideration 4, the Applicant’s non-resident citizen child was not affected by a decision of the Tribunal, but his two resident citizen children would be. He had quite strong relationships with them, especially the daughter. He was not separated from them by choice. It was not in their best interests not to have a relationship with their father. Any hope of a relationship would cease if he is deported.

18. Ms Lewis acknowledged that the children may have witnessed an incident of family violence. The Applicant had expressed concerns at the treatment of the children at the hands of their mother. It was in the best interests of both children that the cancellation of his Visa be revoked.

19. Ms Lewis relied upon her written submissions in relation to Primary Consideration 5.

20. Regarding legal consequences of the decision, Ms Lewis referred to his politically based fear of returning to Pakistan. The Applicant raised a claim under para 9.1.2 of the Direction.

21. Ms Lewis otherwise relied on her written submissions regarding other considerations.

22. In the absence of any proper diagnosis of mental health conditions, Ms Lewis referred to the Applicant’s statement, and that he was currently undergoing counselling.

23. The Applicant was remorseful for his actions and had undertaken rehabilitation which he acknowledged was not complete, and he wished to prove himself in the community.

24. Ms Lewis maintained that the Applicant had complied with his student visa, and had been in a genuine relationship with his partner. He had been unable to pay child support. If released into the community he would be able to work, resume support for his children, and make formal family law arrangements which can include child support. The Applicant could not be punished for prison and detention had impacted his capacity to pay child support. Ms Lewis did not submit that SW was a vulnerable person for the purposes of the Direction.

25. Mr Fyfe submitted that the Primary Considerations 1, 2 and 5 weighed very heavily in favour of non-revocation, and outweighed countervailing considerations, which were the Applicant’s links to the Australian community, and the extent of impediments if returned.

26. The best interests of minor children, and all other considerations were neutral.

27. The Applicant’s conduct included violent crimes, including acts of family violence and domestic violence which are considered very serious. SW clearly had a psychological or psychiatric condition of which the Applicant was aware and was a vulnerable person in terms of the Direction. Offending against her was serious, and otherwise very serious as it was family violence.

28. The Applicant had offended frequently, and over a long period of time. He was a serial recidivist. The Applicant’s offending had increased in seriousness, starting with driving offences, some drug offences, escalating into acts of family violence, with the most serious conviction being ‘assault occasioning actual bodily harm’.

29. The Applicant had been involved in criminal conduct pretty much since arriving in Australia.

30. The Applicant had an anger issue which he conceded was unresolved. When he faced significant stress he used drugs and lashed out violently. There was a significant risk of further conduct likely to cause significant harm.

31. The Applicant generally sought to minimise his offending, and either omit inconvenient details or explain them away. The Applicant was keen to remind the Tribunal that the police facts did not record his side of the story, which suggested that the Applicant still considered that his actions were, in some way, justified.  He provided some form of excuse or justification for each of his domestic violence offences.

32. The Applicant made out as if he was doing SW a favour when in fact he was exhibiting controlling and coercive behaviours and engaging in conduct that was likely to cause SW fear. The Applicant maintained that, really, it was just a matter of respect in the relationship and him informing her politely about his expectations in in that regard. Mr Fyfe submitted that the Tribunal should be very sceptical about that evidence and about what it said about the Applicant’s risk of reoffending. 

33. In relation to the 16 January incident, the Applicant’s account of the incident omitted the fact that he sent various text messages to his ex-wife, JK, in which he variously threatened to kill her, both her parents, and burn down a house with all of them inside it. He had not achieved a level of insight which would be conducive to a low risk of re-offending.

34. His alcohol and drug course, and his anger management course, were of short duration and unlikely to have had much impact on someone with such a long history. The Applicant’s concession that he needed more rehabilitation should not leave the Tribunal comfortable to return him to the community.

35. The Applicant came to Australia with a view to remaining permanently, which was not consistent with the grant of a student visa. He had two engagements in a short space of time, and appeared to be doing what was necessary to remain in Australia. This could cause scepticism as to his evidence before the Tribunal, doing what he had to do, to remain in Australia.

36. If the Applicant reoffended, the harm would be significant. Protection of the Australian community weighed in favour of non-revocation.

37. In relation to the expectations of the Australian community, the Minister relied on his statement of facts, issues and contentions.

38. In relation to the family violence consideration, the Applicant accepted that his conduct amounted to family violence, and direction 99 made it clear that the government has serious concerns about conferring non-citizens who engage in family violence the privilege of remaining in Australia.  The Applicant had engaged in frequent acts of family violence over a relatively short period of time, including threatening to kill his wife, her parents, and burn down the house with all of them inside it, including his children. He has shown limited insight into his offending. His acceptance of wrongdoing and expressions of remorse were accompanied by explanations and justifications. The Tribunal should be wary of his demonstrated rehabilitation regarding family violence.

39. Further, the Applicant committed several acts of family violence while he was the subject of an AVO. There were several convictions for breaches of AVOs which showed that he committed family violence offences after being formally warned, which engaged subparagraph 8.2(3)(d) of Direction 99 and this was a circumstance that made the

    
    

    Applicant’s family violence offending more serious. 

40. Regarding the best interests of minor children, this case was different from the usual. The Applicant had committed acts of family violence in front of his children. He threatened to kill their mother and grandparents by burning down their house. Mr Fyfe submitted that the Applicant did not currently have, and was unlikely to get, custody of his children. He had been a drug user with a long criminal history. Although harsh, it was reasonable to assume his children would not benefit from his presence in their lives.

41. Regarding the strength nature and ties of the applicant to Australia, the Minister relied on his statement of facts issues and contentions.

42. Turning to the legal consequences of non-revocation, there was insufficient evidence so as to allow the Tribunal to deal with the Applicant’s claimed fear of returning to Pakistan. The Tribunal could have a high degree of scepticism of this claimed fear having regard for his six week stay in Pakistan for his wedding reception. This did not suggest a genuine fear of returning, and his mother continued to live there.

    CONSIDERATION

43. Before turning to the specific considerations of Direction 99, the Tribunal first considers the credibility of the Applicant.

44. In his evidence, the Applicant made claims of mental illness arising. The Applicant said[57] that Fatemeh Mazrael and private psychologist Dr Alfaaz Ali had:

    ‘assessed me and provided recommendations for addressing my complex psychological and social issues, including anxiety, depression, substance related disorders and cultural adjustment difficulties.’

    (Tribunal emphasis)

    [57] Ex A2.

45. Nothing in the IHMS notes made by Fatemeh Mazrael refers to any findings of “complex psychological and social issues” or the like, and the Tribunal was not referred to any such reference. Moreover, the Tribunal has no report from anyone by the name Dr Alfaaz Ali before it, or any evidence of Dr Ali’s qualification to make such assessment, if indeed it was ever made. Moreover, Ms Lewis conceded that there was no diagnosis of mental illness on the part of the Applicant[58].

    [58] Transcript Day 2 p 31 lines 35-36.

46. To the extent that there is expert evidence before the Tribunal as to any mental illness on the part of the Applicant, the most powerful is found in the IHMS observations of 13 December 2023, by Dr David Lienert, Psychiatrist recorded:

    ‘Reassured Taimoor that I did not think he was mentally ill but symptoms were stress related. Explained prognosis is favourable…. Did not want counselling at this stage. Has friends to support.’

    (Tribunal emphasis)

47. On the basis of the notes of Dr Lienert, the Tribunal finds that he does not suffer mental illness. The Applicant’s claim that he suffers mental illness is rejected.

48. The Applicant claimed that his mental illness stemmed from the childhood trauma of seeing his father murdered. He gave evidence before the Tribunal[59]:

    ‘When I was in Pakistan, when I was five years old I witnessed, myself, my father landed in an accident, he got catch up with the fire.  And he went to hospital, and he got murdered by his own brothers, my uncles.  And they sold his organs, kidneys for money.’

    [59] Transcript Day 1 p 12 lines 31-35.

............[SGD]..........

Associate

Dated: 17 April 2024

Dates of hearing:

8 and 11 March 2024

Solicitor for the Applicant:

Ms Marial Lewis (Principal)

(Crossover Law Group)

Solicitor for the Respondent:

Mr James Fyfe (Associate)

Minter Ellison Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	23 January 2024
R2	Statement of Facts, Issues and Contentions	29 February 2024	29 February 2024
R3	Tender bundle	Various	29 February 2024
APPLICANT SUBMISSIONS
A1	Statement of Facts, Issues and Contentions	4 March 2024	5 March 2024
A2	Applicant’s statement	4 March 2024	4 March 2024
A3	Bundle of medical records	Various	23 February 2024
A4	Bundle of course completion certificates	Various	6 January 2024
A5	Email about children’s visitation rights received on 23 February 2024	23 February 2024	23 February 2024
A6	Email about children to NSW Legal Aid received on 5 March 2024	5 March 2024	5 March 2024
A7	SMART Recovery program documents	Various	4 March 2024
A8	Letter of support from Zahir Hussain	22 February 2024	4 March 2024
A9	Letter of support from Khurram Shahzad	4 March 2024	4 March 2024
A10	Letter of support from Tarissa Gray	Undated	4 March 2024
A11	Letter of support from Naeem Haq	4 March 2024	4 March 2024
A12	Letter of support from Jaike Petretic	4 March 2024	4 March 2024
A13	Letter of support from Muhammad Waqas Bashir	4 March 2024	4 March 2024
A14	Intervention Hub course completion certificates	Various	4 March 2024
A15	Letter confirming employment for Applicant	4 April 2017	4 March 2024
A16	Financial documents	Various	5 March 2024
A17	Diploma of business course completion certificate	Various	5 March 2024
A18	Photographs in relation of Applicant’s community contribution	Undated	5 March 2024
A19	Family photographs	Undated	5 March 2024
A20	Pictures of children	Undated	4 March 2024
A21	Additional bundle of IHMS and other medical records	Various	5 March 2024
A22	Email confirming Tarissa Gray’s approval to attend detention centre	Undated	5 March 2024
A23	Letter of support from Shamoon Ali Durrani	Undated	5 March 2024
A24	Hand written apology letter from Applicant	Undated	5 March 2024
A25	Further details of certificates completed	Various	11 March 2024
A26	Verification of employment with Pro-Guard security group	17 December 2019	11 March 2024
A27	Photograph of security licence identity card	Undated	11 March 2024
A28	Applicant’s resume	Undated	11 March 2024
A29	Notice of Australian tax assessment and payslips	Various	11 March 2024
A30	Newsletter of Pakistan Tehreek-e-Insaf	15 December 2020	11 March 2024
A31	Marriage certificate	12 February 2015	11 March 2024
A32	Applicant’s daughter’s birth certificate	15 February 2016	11 March 2024
A33	Photoshoot tax invoice	10 September 2016	11 March 2024
A34	NSW Revenue fortnightly payment plan	Undated	11 March 2024