Pourabbas Aghbolagh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Pourabbas Aghbolagh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4269 (5 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5750
Re:Shahrokh Pourabbas Aghbolagh
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:5 November 2021
Date of written reasons: 18 November 2021
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 August 2021 to not revoke the cancellation of the Applicant’s visa.
..........................[sgd]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – mandatory cancellation of the Applicant's Class BB Subclass 155 Resident Return visa – Migration Act 1958 (Cth) s 501CA(4) – Applicant fails to pass the character test – substantial criminal record – sentenced to a term of imprisonment for 12 months of more – whether there is another reason why the cancellation should be revoked – application of Direction No. 90 – where Applicant a citizen of Afghanistan – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 205
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Decision
REASONS FOR DECISION
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
The offending history – the nature and seriousness of the non-citizen’s conduct to date
Paragraphs 8.1.1(1)(a)–(b)
Offence on 15 July 2003 (sentenced on 5 August 2003)
Sequence of offences bearing H numbers ending in 225 and 545
Breaking and entering building with stealing
Robbery on 9 November 2004
Shoplifting on 27 April 2010
Larceny offence on 4 July 2012
Larceny and possession of stolen goods on 1 September 2013
Larceny between $5000 and $15,000
Traffic matters
Conclusion as to the nature and seriousness of the offending
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
NOICC from the Respondent dated 24 October 2006
Formal warning letter in February 2008
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The respective contentions of the parties
Conclusions about risk
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Who are members of the Applicant’s family?
Summary of the Applicant’s oral evidence about family violence: police material
Summary of the Applicant’s oral evidence about family violence: further supplementary documents
Summary of the oral evidence of the Applicant’s Wife
Did any of the Applicant’s conduct constitute family violence?
12 July 2001 police document
21 April 2014 police document
26 January 2017 police document
22 April 2017 police document
5 June 2017 police document
21 October 2017 police document
27 October 2017 police document
The status of the further supplementary documents
Assessment of the seriousness of the Applicant’s family violence
Additional contentions by the Applicant’s representative about the documents dealing with family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: The Best Interests of Minor Children in Australia
Identification of relevant children
Some general background about the Applicant’s biological children
Consideration of factors
The Applicant’s Niece
Conclusion: Primary Consideration 3
Primary Consideration 4: Expectations of the Australian Community
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
Other Considerations
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
18 November 2021

Pourabbas Aghbolagh (“Applicant”) is a citizen of Iran who is 44 years old. His Resident Return (subclass 155) visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”) on 18 November 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“Act”).[1]
[1]G, 9.
He made representations to have the mandatory cancellation of his visa revoked, in accordance with s 501CA of the Act. The Minister’s delegate decided not to revoke the mandatory cancellation decision on 13 August 2021.[2]
[2]G, 9.
The Applicant appealed the non-revocation decision to this Tribunal on 19 August 2021.[3] A hearing was held before me on 22 October 2021. The hearing received evidence from (1) the Applicant; his Adult Daughter; and his Wife. The written material before the Tribunal was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these reasons and marked Annexure A.
[3]G, 1.
On 5 November 2021, to ensure the Tribunal discharged its statutory function on or before the 84^th day, in accordance with s 500(6L) of the Act, I caused the Tribunal to publish my decision in this matter in short-form.[4] A copy of the short form decision is attached to these reasons and marked Annexure B.
[4]Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered at a later time): See [41]–⁠[48].
I now publish my detailed reasons for that short-form decision.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[5]
[5](2018) 267 FCR 320, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[6] I will address each of these grounds in turn.
[6](2018) 267 FCR 320 [21].
Does the Applicant pass the character test?
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”.
The Applicant has been convicted of a variety of criminal offences.[7] For present purposes, all that is required is a single (or combined) sentence above 12 months imprisonment. On 13 April 2007, at the Campbelltown District Court, the Applicant was convicted on one count of “Robbery”. He was sentenced to a head custodial term of 3 years commencing on 11 November 2005 and concluding on 10 November 2008.
[7]See G, 30–32.
I am therefore satisfied the Applicant satisfies the definition in s 501(7)(c) of the Act and thus fails the character test.[8] It follows that he cannot rely on s 501CA(4)(b)(i) of the Act for revocation of the mandatory cancellation.
[8]Note: the Applicant conceded he fails the character test for the hearing before me. However, the Applicant’s representative appeared to reserve the possibility of arguing the decision under s 501(3A) of the Act is invalid, following the decision of the High Court of Australia in Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200. See Transcript, 4, lines 2–26.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
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. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[9] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states 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.”[10]
[9]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[10]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[11]
[11]Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[12]
[12]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection, Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] 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 [(now Direction 90)] 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.”[13]
[13](2018) 74 AAR 545 [23].
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
I will consider each in turn.
The offending history – the nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
Paragraphs 8.1.1(1)(a)–(b)
For the purposes of clarity, I will recount the Applicant’s offending history and in the course of that narrative will make reference to the applicable componentry of paragraphs 8.1.1(a)–(b) (as may be applicable). I will then go on to consider the applicability of paragraphs 8.1.1(1)(c)–(g) of the Direction.
Offence on 15 July 2003 (sentenced on 5 August 2003)
On 5 August 2003 at the Fairfield Local Court, the Applicant was convicted of a shoplifting offence involving goods to a value of less than or equal to $2000. He was fined $500 and ordered to pay costs of court in the sum of $61. The offence involved the Applicant entering the K-Mart Marylands store on 15 July 2003 and attempting to unlawfully take a number of cosmetic items valued at less than $2000. It appears he committed this offence in company with another person. He and his co-offender were observed leaving the K-Mart store making no attempt to pay for the items.[14]
[14]See generally Transcript, 31, lines–33–45; 32, lines 1–23. See also R2, 116.
He was questioned about this offending in cross-examination and acknowledge having committed it. He could not recall the reason for committing this offence, and was not able to provide a reason for doing so. He was pressed about why it was he committed the offence and he responded with: “I don’t remember. The reason, I don’t remember.”[15]
[15]Transcript, 32, lines 11–12.

This offending does not engage any of the factors in paragraphs 8.1.1(1)(a)–(b). The offending should not, of course, be ignored for present purposes. It is offending of an irresponsible nature motivated, most probably, by the Applicant’s acknowledged difficulties with illicit substances at that time. The conduct was most probably motivated by a requirement to raise funds urgently to finance the purchase of further drugs.
Sequence of offences bearing H numbers ending in 225 and 545
Having regard to the Applicant’s criminal history, this bundle of offences appears to involve three convictions for “robbery”, one conviction for “robbery armed with offensive weapon”, and one conviction for “drive on road etc while license suspended”.[16] At the hearing, the Respondent’s representative – when cross-examining the Applicant about this sequence of his offending – had the following exchange with the Applicant:
“MS SAUNDERS: Because it looks like on page 31, it looks like there' s three convictions of robbery, but my understanding is that that must be a mistake. Because there were only two convictions of robbery and one conviction of robbery armed with an offensive weapon. Is that right.
WITNESS: I think so, yes.”[17]
[16]G, 31–32.
[17]Transcript, 32, lines 38–43.
I will therefore assess these sequences of the Applicant’s offending on the basis of there being two convictions for robbery, one conviction for robbery with an offensive weapon, and one conviction for driving on a road while license suspended. As best as I understand the criminal history, the Applicant was initially dealt with for these offences at a magistrate’s court. The offences eventually found their way to the Campbelltown District Court who, per His Honour Judge Maguire, dealt with them.
In terms of the three robbery offences, the sentencing remarks note the following. First, the Applicant’s conviction for “robbery armed with offensive weapon” involved him approaching a female victim (on 20 October 2004) while that victim was seated alone in her mother’s car in the carpark of a local shopping centre. Armed with a knife, the sentencing remarks disclose that the Applicant forced his way into the car. The sentencing remarks also disclose that he:
“drove the car away holding the knife in his right hand and the victim in his left. He demanded money. The victim placed $25 on the dashboard. She removed her jewellery and placed it with the money. This was all done in response to the offender’s demands. She also complied with his demand to surrender her mobile phone. He allowed the victim to leave the car and he then drove off.”[18]
[18]G, 48.
Second¸ the first of the two convictions for “robbery” involved the following conduct, as it appears in the relevant sentencing remarks:
“About 10.05am on Thursday 11 November 2004 the victim, forty year old [redacted] was walking east on [street redacted] with her two young children. The victim was holding a handbag and her daughter' s hand in one hand and her son’s hand in the other. The offender, without warning, pushed the victim from behind causing her to fall to the ground. The victim looked up and saw the offender take hold of her handbag and pull it from her hands. The victim got back up, turned around and saw the offender run away.”[19]
[19]G, 48–49.
Third, the second of the two convictions for “robbery” involved the Applicant on 13 November 2004, approaching a 70 year old lady who was simply walking in her local area with a companion. It transpired that the 70 year old lady and her companion were members of the Jehovah’s Witness faith and were doorknocking houses. The Applicant approached the victim (ie the companion of the 70 year old lady) and purported to seek directions. While proceeding to walk away from the two doorknockers in the opposite direction, the victim:
“[…] felt a thump from behind her and her handbag being pulled. On turning around the victim saw the offender trying to grab her bag. The offender grabbed her bag and a struggle ensued. She tried to hold onto her bag until the force of the struggle caused the straps to break. The offender fled with the handbag.”[20]
[20]G, 49.
Fourth, this bundle of offences involves a conviction for unlicensed driving. As best as I understood the material, this conviction most probably would have arisen as a result of the circumstances surrounding his conviction for “robbery armed with offensive weapon” (committed on 20 October 2004) that involved him driving off in the car of the victim’s mother. For this offence, Judge Maguire imposed a fine of $100 and disqualified the Applicant for driving for one year from 11 November 2004.
The Applicant readily accepted the circumstances of this offending during cross-examination. The offences were committed for the specific purpose of him raising money to buy drugs.[21]
[21]See Transcript, 33, lines 19–37.
The three above-described robbery offences must be viewed as very serious, because they were of a violent nature and were committed against women.[22] The Applicant did not deny that he chose female victims because he was scared to commit such offences against men.[23] Such a finding of “very serious” is consistent with the observations of Judge Maguire who noted that “[t]he community regards offences such as these [(ie the robbery offences)] as being very serious.”[24]
[22]Direction, paragraph 8.1.1(1)(a)(ii).
[23]See Transcript, 34, lines 3–15.
[24]G, 51.
Breaking and entering building with stealing
On 12 November 2004,[25] the Applicant committed an offence recorded as “break and enter building (steal) value <=$15,000”.[26] The victim of the handbag robbery described above[27] had a house key in her bag when the bag was stolen by the Applicant on 11 November 2004. A lengthy police investigation, including identity parades and fingerprint evidence was conducted. The Applicant’s fingerprints were found in the back yard of the victim’s house on a metal rod on the rear veranda of the house. The Applicant denied the offending to police multiple times during the investigation. Eventually, it appears he pleaded guilty to this offence on 12 April 2006.[28]
[25]Note: The sentencing remarks of the District Court of New South Wales in the material suggest the Applicant was in criminal custody from 11 November 2004 (G, 52). But a variety of documents suggest the Applicant was not in custody until at least 13 November. See G, 49; R2, 5; 8. Nothing appears to turn on this discrepancy.
[26]R2, 9; See also, G, 31.
[27]See [‎32], above.
[28]See R2, 8.
Taken at face value, it cannot be safely found that this component of the Applicant’s offending is “very serious”. It is, at the very least, serious. This is because his offending involved an unlawful transgression not just against the person of the victim, but also against the victim’s private residential property. Its seriousness can also be gleaned from the extent to which it consumed police resources who had to resort to various means of forensic detection methods in order to prove the offence. To be clear, I am of the view that this offence is serious but that it also readily contributes to an overall finding that the Applicant’s overall criminal history in this country is very serious.
Robbery on 9 November 2004
On 13 April 2007, the Applicant was dealt with at the Campbelltown District Court for “Robbery – S.I.”. For the purposes of this component of the Applicant’s offending, the relevant date is 9 November 2004. The sentencing judge (His Honour Knox DCJ) noted that the commission of this offence saw the Applicant armed with a knife. The facts of the offending are well-summarised by his Honour in the sentencing remarks which are reproduced as follows:
“The facts of this offence need to be outlined in some detail and they are essentially that at about 12 noon on Tuesday 9 November 2004 the victim was in the car park at [shopping mall redacted]. She had with her in the rear of her vehicle her three year old daughter. She went to the underground car park and parked her vehicle. She was then approached by the offender who said to her, “If you don’t want anything to happen to your daughter give me everything you have got”.
The victim immediately feared for her own – and probably more importantly – for the safety of her three year old child. She and the offender then wrestled inside the driver’s side of the vehicle and the car door began to close. It seems that the victim [redacted] fought the accused scratching him to his face area. He grabbed her mobile phone and ran away.”[29]
[My underlining]
[29]G, 36–37.
The circumstances of this offence were put to the Applicant in cross-examination. He confirmed that he recalled the offence that he had recently read the sentencing remarks. He confirmed that his Honour Judge Knox’s recount of the facts accurately reflected what occurred. In particular, the Applicant confirmed that he did say the above underlined words during the course of committing the offence. He agreed that his offending involved a female victim who was with her child. He was specifically asked whether he agreed that he would have approached this female victim because he considered her to be vulnerable. The Applicant agreed with this proposition.[30]
[30]See Transcript, 36, lines 1–32.
One need look no further than the Applicant’s own evidence in cross-examination to safely conclude that this offence is clearly (1) a crime of violence.[31] It can also be safely found to be a crime of a violent nature against a woman and a child, which means that it is a very serious crime. This finding can safely be made regardless of the sentence imposed on the Applicant for the offence.[32] I am also of the view that it can safely be found – even by a cursory review of what the Applicant said in cross-examination – that he directly targeted his offending towards a woman with a child whom he thought to be a “vulnerable” target. It can thus be safely found that the specifically identified paragraphs of paragraph 8.1.1(1)(a)–(b) of the Direction strongly militate in favour of a finding that the Applicant’s offending has been very serious.
[31]Direction, paragraph 8.1.1(1)(a)(i).
[32]Direction, paragraph 8.1.1(1)(a)(ii).
Shoplifting on 27 April 2010
On 22 June 2010, the Applicant was dealt with at the Downing Centre Local Court for “Shoplifting”.[33] This offending involved the Applicant going to his local supermarket and being observed to pick up a packet of “Starburst lollies valued at $2.79” and to place those lollies on his person, specifically underneath his belt. He was observed walking up to the checkout aisles but instead of stopping to pay for the lollies, he walked straight through the aisle and did not stop to pay. The lollies were recovered and, as part of his sentence, no compensation was sought from the Applicant.[34] A bond was imposed with an operative period of 12 months. It can be safely found that this is low-level offending. I cannot see how it attracts the operative effect of any of the componentry contained in paragraphs 8.1.1(1)(a)–(b) of the Direction. This offending is not informative about the nature and seriousness of the Applicant’s conduct for present purposes.
[33]G, 32.
[34]R2, 12.
Larceny offence on 4 July 2012
On 17 December 2013, the Applicant found himself before the Downing Centre Local Court where he was dealt with on one count of “Larceny value <=$2000”. In essence, this offending involved the Applicant unlawfully taking a water testing tank from its rightful owner, who was the proprietor of a sheet metal fabricating business in the local area. Full and complete particulars of this offending appear in the material.[35] During cross-examination, the Applicant readily accepted that he committed the offence while under the influence of drugs.[36] He specifically recalled committing the offence and when asked to explain the reason or circumstances behind its commission, he responded with “[h]onestly I don’t know, I don’t know what to say.”[37]
[35]See R2, 15–18.
[36]Transcript, 37, lines 43–47; 38, lines 1–23.
[37]Transcript, 38, line 8.
At first blush, having regard to the remainder of the Applicant’s offending, his intention to steal a water testing tank may appear somewhat inconsistent or out of character. His explanation was less than convincing, involving a suggestion that he was “collecting scrap metals”.[38] Ultimately, the familiar motivator behind virtually all of the Applicant’s offending – the need to raise funds to buy drugs – was behind the offending:
“MS SAUNDERS: It's not clear to me and maybe you could explain what a water testing tank is?
WITNESS: That was, I was back then, I was collecting scrap metals. You know what I mean? But the reason is, I thought it was scrap. I know I did that, then later I said, yes, I was happy to pay it back. (Indistinct) When I took it, I thought it was scrap metal because it was sitting in the corner, and I put it in the Ute and I took it. But that’s the thing. Other that that, (indistinct) I know that I was using ice when I did it. Yes.
MS SAUNDERS: And so was your intention to sell the water testing tank to have money to buy more ice.
WITNESS: Yes.”[39]
[38]Transcript, 38, line 13.
[39]Transcript, 38, lines 10–23.
For this offending, the court imposed a custodial term of imprisonment of seven months, to be wholly suspended upon the Applicant entering into a bond having an operative period of seven months. He was ordered to pay compensation to the business proprietor in the amount of $1,000. This offending is not captured by any of the componentry of paragraph 8.1.1(1)(a)–(b) of the Direction. I make specific reference to the “lead-in” words to both sub-paragraphs (a) and (b) of paragraph 8.1.1(1) of the Direction. Those words are “without limiting the range of conduct that may be considered very serious […]”.
This conduct constituted an unlawful contravention of the property rights of a local business owner. The Applicant’s conduct contravened the victim’s right to operate his business without unlawful interruption by others. The conduct also sought to deprive the victim of an item of his plant that was necessary for the operation of his business. Thus, the Applicant’s conduct unlawfully interfered with the operation of the business and specifically transgressed the property rights of the victim represented by the victim’s ownership of the water testing tank. This offending convincingly militates in favour of a finding that the totality of the Applicant’s offending has been very serious.
Larceny and possession of stolen goods on 1 September 2013
On 17 December 2013, the Applicant was dealt with at the Downing Centre Local Court for respective convictions described in the criminal history as (1) “Goods in personal custody suspected being stolen (not m/v)”; and (2) “Shoplifting value <=$2000”. This offending is summarised in the material.[40] It essentially involved the Applicant picking up a bottle of perfume in the fragrance area of the Myer Sydney City store. He was observed walking around the store, taking the perfume out of its storage box and placing the bottle of perfume in his jacket pocket. He was also observed walking through the point of sale part of the store without attempting to pay for the perfume. He was confronted by the store’s security officer and during interview, the Applicant pulled out the bottle of perfume from his left-hand side inner jacket pocket.
[40]See R2, 19–22.
Police arrived and took over the situation. After the Applicant was formally cautioned, he told the police that the purpose of the offending was “I was getting it for father’s day.”[41] During his interview with the security staff, it was noted that first, he had in his possession a credit card in the name of a female and when questioned about this female the Applicant said “I don’t know whose card that is”.[42] Second, security staff noted that $145 in cash plus additional credit cards in his name indicated he did have sufficient funds to pay for the perfume. Third, checks conducted on the Applicant revealed an outstanding warrant against him.
[41]R2, 21.
[42]R2, 21.
As best as I understood the facts, the shoplifting offence relates to the Applicant’s unlawful taking of the perfume. The credit card in the name of the apparently unknown female gave rise to the “Goods in personal custody suspected being stolen” conviction.[43] Respective 12 month bonds were imposed on the Applicant and both were the subject of supervision of the NSW probation service for a period of 12 months.
[43]See R2, 21.
I repeat my observations at [‎45] of these Reasons. While it may be accepted that the value of the perfume was not a large amount, his refusal to pay for the perfume in circumstances where he clearly had sufficient funds to do so does, to my mind, speak to the severity of the offending. It is wanton theft, pure and simple. It is conduct which militates in favour of a finding that the totality of the Applicant’s offending history must be found to be very serious. I should mention that I base this finding primarily on the Applicant’s unlawful taking of the perfume. This is the safest course for present purposes where although he was found in possession of the female’s credit card, he did not purport to unlawfully use it and we cannot be certain that it was stolen.[44]
[44]Note: the police material strongly suggests, at R2, 22–23 that the owner of the credit card left it on the counter at a service station just under two months before the Applicant was found with it.
Larceny between $5000 and $15,000
On 18 November 2019, the Applicant was dealt with at the Blacktown Local Court on one count of larceny. He was convicted and an intensive correction order (“ICO”) was imposed for an operative period of eight months. This ICO was ordered to be supervised for eight months.[45] In essence, this offending involved the Applicant pawning his housemates’ property while they were on holiday in May 2018. During cross-examination, the Applicant accepted the factual circumstances of the offending and confirmed that the main purpose of it was to obtain money to buy drugs. He also accepted that the circumstances of the imposition of the ICO and that as part of that order he was required to enter and complete a residential de-tox program.[46]
[45]G, 30.
[46]See Transcript, 38, lines 46–47; 39, lines 1–23.
The circumstances of the offending involved the Applicant sharing a rental house with the victims. They went away overseas for a period of five weeks commencing 28 May 2018. The Applicant remained behind in the subject residence and was the only person with lawful access to his room and the common areas of the house. Upon returning from their overseas trip on 5 July 2018, the victims found that their previously locked bedroom and locked garage had been broken into and that certain items were missing. In particular, the police identified six items pawned by the Applicant at local pawn shops. The facts make it clear the items were pawned while the victims were overseas.[47] Police were compelled to apply for a warrant for the Applicant’s arrest.
[47]R2, 36.
I again repeat and rely on my comments and findings at [‎45] of these reasons. While it is not immediately clear from the facts precisely what items were pawned and what their combined value was, this conduct nevertheless militates in favour of a finding that the totality of the Applicant’s offending has been very serious.
Traffic matters
Paragraph 8.1(1) of the Direction provides that “when considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”. The Applicant has committed other conduct in this country in the form of his traffic offending. I should mention, out of an abundance of caution, that the offences to which I am about to refer may not all necessarily be summary or traffic offences. Be that as it may, I am prepared to effectively treat them as driving or traffic type matters for the purposes of ascertaining the extent to which they point to the nature and seriousness of the totality of the Applicant’s unlawful conduct.

Having regard to the criminal history, the following traffic/summary/driving type offences are recorded thus:
·2 May 2008, the Applicant was before the Paramatta Local Court for operating a motor vehicle without the correct class of license. The charge was dismissed and it would appear he was ordered to pay costs of court in the sum of $70.
·12 July 2010, the Applicant was before the Paramatta Local Court on driving while his license was suspended. This charge was dismissed and he was ordered to pay costs of court in the sum of $79.
·28 June 2017, the Applicant was before the Waverly Local Court and was convicted on two counts of “drive vehicle, illicit drug present in blood – 1^st off”. For the former offence, the Applicant was convicted and fined the sum of $330 and he was disqualified from driving for six months. For the latter offence the Applicant was convicted and fined the sum of $550 and he was disqualified from driving for nine months.
·15 August 2017, the Applicant was convicted at the Paramatta Local Court of the following four offences:
oUse uninsured motor vehicle – fined $800;
oDrive motor vehicle while licence suspended – 2^nd+off – fined $1,200 and disqualified from driving for two years;
oUse unregistered registrable Class A motor vehicle on road – fined $800;
oUse vehicle on road or road related area m/v tax not paid – fined $800.
While the majority of the Applicant’s traffic history does not reach the level of any significant seriousness, it is difficult to ignore his respective convictions for operating a motor vehicle while under the influence of illicit drugs.
In an earlier decision I have recounted the dangers of irresponsible operation of a motor vehicle upon other of Australian carriageways.[48] Putting aside the drug-driving convictions, the overwhelming balance of the Applicant’s traffic history is more suggestive of a person predisposed to act irresponsibly in relation to the administrative requirements of owning and operating a motor vehicle. The explanation for this may be found in the extent to which illicit drugs dominated his life for most, if not all, of his offending history. On balance, I am prepared to find that the Applicant’s traffic history moderately supports a finding that the nature and seriousness of the totality of the Applicant’s conduct in this country is indeed of a very serious nature.
[48]Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 [43]–[46].
Conclusion as to the nature and seriousness of the offending
I am mindful of the terms of paragraph 8.1.1(1)(a)(iii) of the Direction. To my mind, one of the difficulties with applying the direction with specific reference to family violence conduct or offences is the relatively unfettered nature of how paragraph 8.1.1(1)(a)(iii) is drafted. It allows a decision-maker to take into account “acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed”. The material contains repeated references to independently reported (ie by the police or their equivalent) incidents of family violence with this Applicant at its epicentre. While the terms of paragraph 8.1.1(1)(a)(iii) do, strictly speaking, allow the use of this sub-paragraph in an assessment of the nature and seriousness of the Applicant’s conduct, I am mindful of the task imposed by paragraph 8.2 of the Direction. Read reasonably, the configuration of paragraph 8.2 of the Direction facilitates the taking into account of conduct amounting to family violence even in the absence of duly recorded convictions for that conduct.
Therefore, I am of the view that to take into account family violence-type conduct (especially where there are no conviction(s) recorded for it) for the purposes of both paragraphs 8.1.1(1)(a)(iii) and 8.2 of the Direction must surely amount to double-counting. I will thus refrain from applying the componentry of paragraph 8.1.1(1)(a)(iii) in any assessment of the nature and seriousness of the Applicant’s conduct.
I will, however, make reference to that conduct for the purposes of applying and allocating any necessary weight to paragraph 8.2 of the Direction.[49]
[49]See [‎111]–[‎218], below.
Paragraph 8.1.1(1)(c)
This sub-paragraph (c) compels an enquiry into the sentences imposed upon the Applicant by a court for his crimes. An initial observation is that the wording of this sub-paragraph (c) precludes me from referring to the sentences the Applicant has received for the commission of crimes of a violent nature against women or children.[50] I am also precluded from taking into account any sentences imposed for offending by the Applicant involving acts of family violence.[51] This Applicant does not have any sentences for offences arising from or directly attributable to family violence and, for reasons I have stated earlier (see [‎58]–[‎60], above), I will deal with the Applicant’s family violence-type conduct as part of my discussion of paragraph 8.2 of the Direction.
[50]Direction, paragraph 8.1.1(1)(a)(ii).
[51]Direction, paragraph 8.1.1(1)(a)(iii).
For the sake of completeness, I note that this sub-paragraph (c) precludes me from having regard to any sentence(s) imposed upon the Applicant for offending captured by paragraph 8.1.1(b)(i) of the Direction. As best as I understood the material, the Applicant does not have convictions and sentences for the commission of any such crime or crimes.
For clarity, I have separately tabulated the Applicant’s offending resulting in both custodial and non-custodial sentences. For his offending resulting in the imposition of custodial time, allowable under this sub-paragraph (c), these are the sentences that were imposed:

Outcome date Offending resulting in custodial terms Nature extent of custodial terms

12 April 2006 Break and enter building Six months imprisonment

17 December 2013 Larceny value <=$2000 Seven months imprisonment (suspended)

18 November 2019 Larceny value >$5,000 & <=$15,000
Initially, intensive correction order imposed for eight months on a supervised basis

See commentary in immediately following paragraph [‎64].

During cross-examination, the Applicant acknowledged that he unilaterally breached the terms of this intensive correction order by discharging himself from the rehabilitative treatment program to which he had been allocated. This breach of that order resulted in him serving the remainder of the ICO in actual custody and, as best as I understood the factual sequence of this case, it was pursuant to the imposition of this further custodial time that spawned the mandatory cancellation of his visa. The Applicant said the following in cross-examination:
“MS SAUNDERS: Now, this is another Intensive Correction order breach report. And in this report it indicates that you again self-discharged from the program on 13 February 2020. Is that right.
WITNESS: That's correct yes.
MS SAUNDERS: And can you explain why you self-discharged on this occasion.
WITNESS: The reason I discharged myself, yes. I just kind of upset. I just couldn’t handle it anymore. I couldn’t stay there anymore. I just walked out.
MS SAUNDERS: So, what was it about the rehabilitation centre that you couldn’t handle.
WITNESS: Like I was arguing with some people in there.
MS SAUNDERS: And so, because you had an argument you decided to leave?
WITNESS: Yes because it was on-going argument you know, like they're picking on me because of my speaking and they were like making fun at me, and yeah. That was to be honest I couldn’t stay; I couldn’t handle anymore. I had to leave. I left. I just left.
MS SAUNDERS: And is it correct that you didn’t return to the rehabilitation program.
WITNESS: That's correct. Yes, correct.
MS SAUNDERS: And it's correct that this therefore led to your Intensive Correction Order being revoked?
WITNESS: That's right. Yes.
MS SAUNDERS: And then that in term led to you serving a further sentence of imprisonment. Is that right?
WITNESS: That's correct.”[52]
[52]Transcript, 41, lines 37–47; 42, lines 1–28.
For the Applicant’s offending resulting in the imposition of non-custodial sentences, allowable under this sub-paragraph (c), these are the sentences that were imposed:

Outcome date Offending resulting in non-custodial terms Nature extent of non-custodial sentences

5 August 2003 Shoplifting value <=$2000 Fine $500 (costs of court – $61)

7 April 2006 Drive on road etc while license suspended Fine $100, license disqualified for 1 year

2 May 2008 Driving while unlicensed to drive that class of vehicle Dismissed (costs of court – $70)

22 June 2010 Shoplifting Bond, 12 months

12 July 2010 Drive on road etc while license suspended Dismissed (costs of court – $79)

17 December 2013 Goods in personal custody suspected of being stolen (not m/v) Bond, 12 months (supervised)

17 December 2013 Shoplifting <=$2000 Bond, 12 months (supervised)

28 June 2017 Drive vehicle, illicit drug present in blood (1^st offence) Fined $550, license disqualified for 9 months

28 June 2017 Drive vehicle, illicit drug present in blood (1^st offence) Fined $330, license disqualified for 6 months

15 August 2017 Use uninsured motor vehicle Fined $800

15 August 2017 Drive motor vehicle while license suspended (2nd+off) Fined $1200, license disqualified for 2 years

15 August 2017 Use unregistered registrable Class A motor vehicle on road Fined $800

15 August 2017 Use vehicle on road or road related area m/v tax not paid Fined $800

Given the exclusionary language at the commencement of this sub-paragraph (c), it would not be safe to find that the sentences imposed by the courts for this Applicant’s crimes and other offending should militate to any significant extent in favour of a finding about the nature and seriousness of his conduct. It is clear that the most significant of his offences – certainly in terms of custodial terms imposed on him – were the result of offences involving crimes of a violent nature against women or children. As mentioned, I am precluded from taking those sentences into account, significant though they are.
As I said earlier, with the possible exception of his drug-driving convictions, the Applicant’s offences in and around the ownership and operation of a motor vehicle which are outlined at [‎55], above, are more redolent of a distracted individual who, due to his predisposition towards abusing illicit drugs, most probably forgot to keep abreast of administrative requirements relating to the ownership and use of a motor vehicle and/or his driving privileges.
All in all, this sub-paragraph (c) militates, at best, moderately in favour of a finding that the totality of the Applicant’s criminal offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(d)
This sub-paragraph points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Turning first to the frequency of the Applicant’s offending, it can be noted that he has committed almost 20 offences over an offending period spanning some 18 years. He has therefore found himself before lawful authority for his offending at least once per year over the last approximately two decades. In his favour is a period of some three years in which there was no offending. That period runs from, approximately, December 2013 to June 2017.
The Applicant’s difficulties with drugs and the historical orientation of his life towards committing offences to meet the cost of his drug habit is the main causative element behind the number of offences on his criminal history. With the exception of the aforementioned three year period, the offending history must be found to be persistent and frequent. The other notable thing about his offending is that it does not stretch back into his adolescence or even very early adulthood. His offending history in this country commenced when he was in his mid-20s. Thus, he cannot attribute any quota or portion of his offences to the irresponsibility and naivety of youth. The further notable element is that his offending history spans (for the first half) the presence in his life of his Older Child and (for the second half) the presence in his life of both of his daughters.
Second, I will address whether there is a discernible element of increasing seriousness in the offending. Perhaps the fairest way to determine this issue is to divide the Applicant’s history into two distinct parts. First, his offending history pre-mid, 2010 and second, his offending history from mid-2010 to November 2019. The first part of his history clearly contains his most serious offences. It was during this first period that he committed his very serious offences involving violent offending against women and children which I have found to be of a very serious nature.
Post mid-2010, two things can be said about his offending history. It is predominated by driving/traffic/motor vehicle offences and relatively low-level larceny-type offending. In addition, this phase of his offending has also involved a predisposition towards committing offences involving transgression of the property rights of others. Put simply, the second phase of his offending is more oriented towards taking/stealing things to raise money to buy drugs as opposed to openly challenging or accosting victims to obtain money and valuables from them for this drug-oriented purpose. The outlier in terms of the seriousness of his offending during its second phase is, of course, his unlawful conduct in taking the property of his housemates while they were away on an overseas trip.
However, in terms of finding any level of increasing seriousness, it would be unfair to suggest that the second phase of his offending is demonstrative of an increasing seriousness over the first. I do not think it is. Therefore, the weight allocable to this sub-paragraph (d) must be cautiously moderated. I will allocate a moderate level of weight to this sub-paragraph (d) in favour of a finding that the totality of the Applicant’s offending has been very serious.
Paragraph 8.1.1(1)(e)
This sub-paragraph concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. I will approach the weight allocable to this sub-paragraph (d) by reference to four grounds. First, it can be fairly said that the totality of the Applicant’s offending (regardless of whether we are talking about its abovementioned first or second phases) has had the effect of adversely infringing and affecting the property rights of others. On his own evidence, the Applicant committed the significant majority of his offences for the purpose of raising funds to meet the cost of his addiction to illicit drugs. That addiction, of course, is a matter for him. It should not be sheeted home by him to victims via his offending which has been intended to deprive them of their property to which they are rightfully entitled.
Second, in a similar vein, during the course of unlawfully relieving people of their personal and other property, the Applicant has caused himself to very seriously transgress against the personal rights of others. Threatening and menacing behaviour against particularly vulnerable victims has been a significant feature of his offending. People are entitled to go about their business in the community without having to feel threatened by someone who is unable to control their predilection to abuse illicit drugs. In this sense, the unreasonable and unlawful infringement of the personal rights of other people in the community is a readily discernible cumulative effect of his offending.
Third, it is pertinent to have regard to what other elements of the law enforcement process have had to say about his offending. Stated chronologically, his Honour Judge Maguire of the New South Wales District Court, when sentencing the Applicant on 7 April 2006, said this: “The community regards offences such as these as being very serious.”[53] Likewise, when sentencing the Applicant on 13 April 2007, Judge Knox of the NSW District Court said these things:
“Nevertheless what occurred were four robberies[54] – and they are serious robberies – carried out on citizens of this country who must be entitled to go about their business, as indeed anybody in Australia is, without fear of being robbed.
[…]
Nevertheless, he [the Applicant] must realise that he just absolutely cannot carry out these kinds of activities in the community. Moreover, he must desist from them otherwise he will be facing much more serious charges in the event that there is any further occurrence.
Also of concern to me and doubtless to him and to his family is the fact that as a result of his incarceration, his daughter and his wife have found themselves homeless. They have ended up in various women’s refuges.”[55]
[53]G, 51.
[54]Note: His Honour Judge Knox was dealing with one count of robbery. But His Honour was aware of the three robberies dealt with by Judge Maguire, and that is why Judge Knox has referred to “four robberies”.
[55]G, 41–42.
In the abovementioned second phase of his offending, when being sentenced by Magistrate Robinson of the Blacktown Local Court on 18 November 2019 (for the offending against his housemates while they were overseas), the learned Magistrate made the following favourable remarks about the Applicant’s criminal history and the steps that the sentencing magistrate thought the Applicant had taken towards addressing his drug dependence:
“Your history is not a bad one. I accept that there has been some time since you committed a dishonesty offence and relevantly I see that you have taken some positive steps towards addressing the underlying issue which is clearly a drug dependence.”[56]
[56]G, 33.
However, these comments were made by the learned sentencing Magistrate in the course of imposing an ICO on the Applicant. Obviously, the learned sentencing magistrate thought the Applicant had reached a point where such an order was warranted. As I have outlined earlier in these reasons, this view was, with respect, somewhat misplaced. On his own evidence, the Applicant unilaterally removed himself from the treatment/rehabilitative program inherent in the ICO and declined to either complete it or participate any further in it. It would be interesting to see what, if any, sentencing remarks there may be at the time the relevant court dealt with the Applicant for his unilateral breach of this ICO and his consequent incarceration for that breach. No such sentencing remarks appear in the material.
Fourth, at first blush, it may be said that from the predominantly custodial terms the Applicant received during the first phase of his offending for his offences against individual victims and/or their property, the Applicant did derive some kind of deterrent effect such that the second phase of his offending history does not contain the same extent of custodial terms. I do not think such a finding is warranted. There are two custodial sentences for his offending during its second phase. There is a seven month custodial term (albeit suspended) for larceny-type offending committed in 2013. There is also his abovementioned breach of the ICO which led to his re-incarceration. Thus, I do not think the Applicant has experienced any measure of a deterrent effect from the custodial terms imposed upon him during the first phase of his offending. Put at its highest, any discernible deterrent effect can be found in the approximately three year lull in his offending between 2013 and 2017, but nowhere else.
I am thus of the view that strong weight is allocable to this sub-paragraph (e) in favour of a finding that the totality of the Applicant’s offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(f)

This sub-paragraph points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
On 2 August 2003, the Applicant departed Australia.[57] On 5 August 2003, while still outside of the country, the Applicant was convicted of shoplifting in the Fairfield Local Court.[58] After that conviction was recorded, the Applicant returned to Australia on 25 October 2003.[59] He completed an incoming passenger card. On that card, he indicated that he did not have any criminal convictions, and declared that the information on the card was “true, correct and complete”.[60]
[57]See G, 92.
[58]G, 32.
[59]G, 92.
[60]G, 101.
Technically, the Applicant failed to disclose prior criminal offending. However, because he was offshore when the conviction occurred, it is possible that he did not know about the conviction. He was also not asked about this incoming passenger card in the hearing before me. Therefore, I do not place any weight on this sub-paragraph (f).[61]
[61]Interestingly, there is an email in the material in which the Applicant offers his own explanation for why the passenger card is incorrect – See G, 108. In the final analysis, this document does not change my findings about this sub-paragraph (f).
Paragraph 8.1.1(1)(g)
This sub-paragraph looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Applicant has received two such warnings. One was contained in a “Notice of Intention to Consider Cancellation” (“NOICC”); and the other was in a notice of decision not to cancel the Applicant’s visa.
NOICC from the Respondent dated 24 October 2006
In this letter, the Respondent makes it known to the Applicant that the offending for which he had been convicted in this country up to that point had come to the attention of the Respondent and that the Respondent was considering using s 501(2) of the Act to cancel the Applicant’s visa. There is nothing in the material to say the Applicant did not receive this letter. He was invited to comment on the information then before the Respondent. As best as I understood the material, the Respondent did not proceed to apply s 501(2) of the Act to cancel the Applicant’s visa nor were any other adverse steps taken against the Applicant’s visa status at that time.
What can be noted with certainty is that until the Applicant’s receipt of this letter, he had found himself before lawful authority for sentencing on at least three occasions involving the commission of approximately six offences, some of which included the very serious offending against vulnerable female and elderly victims. The Applicant obviously took nothing from this first letter of warning.
Formal warning letter in February 2008
In or about February 2008, the Applicant received a certain letter from the Respondent bringing to his attention the risk of cancellation of his visa based on his offending in this country up to that time.[62] The letter expressly says that it constitutes a “formal warning” to the Applicant that any further offending would imperil his visa status to remain here. Specifically, the letter provides as follows:
“Visa refusal or cancellation may be reconsidered if fresh information comes to notice or if your client incurs a liability on new grounds. Disregard of this warning will weigh heavily against your client if their case is reconsidered.”[63]
[62]G, 98–100.
[63]G, 98.
Since receiving that letter, the Applicant found himself before lawful authority for sentencing on another seven occasions during which he was dealt with for the commission of some 13 offences. I cannot accept that in committing those offences, the Applicant did not appreciate that such offending could give rise to “fresh information” or that it could otherwise be construed as him “incur[ing] a liability on new grounds”. While the language of the letter may perhaps be more specifically addressed to further offences, there can be no cavilling with the proposition that the letter put him on notice to cease his offending pattern. He failed to do so.
The Applicant’s representative put the following argument to the Tribunal at the hearing:
“Now, I accept that he’s had warnings before but, with respect, Senior Member, and I mean no disrespect to the applicant, he’s not legally trained. Giving these notices to people from 12 years ago, when, of course, the mandatory cancellation regime didn’t even exist, means very little to these people, particularly people, as he said, he was on drugs at the time.”[64]
[64]Transcript, 103, lines 9–14.
I have had particular reference to the sentencing remarks of Magistrate Robinson who, at a sentencing hearing on 18 November 2019 imposed the ICO on the Applicant. This is what the learned Magistrate told the Applicant about any breach of that ICO:
“The conditions of the order are as follows. You are not to commit any offences whilst you are on that order.
[…]
Please understand that it is a gaol sentence that you are serving in the community as no doubt Mr Cole would have explained to you. If you do not comply with the conditions of the order you may have to appear before the Parole Board and there will be consequences which might be as lenient as a warning but might be as severe as you having to spend the balance or all of your sentence in custody. Do you understand? Yes, thank you. Please attend the registry office to get a copy of that order.”[65]
[65]G, 34.
There can be no doubt the Applicant was told (at the sentencing hearing) and that he clearly understood that any breach or non-compliance with the ICO would likely result in further custodial time.
The next argument put on behalf of the Applicant was that the Tribunal should take a lenient approach to this sub-paragraph (g) because (1) when the Applicant received his letters in 2006 and 2008, they pre-dated the change in the law allowing for mandatory cancellations upon the compilation of (inter alia) head custodial terms totalling 12 months or more and (2) he did not know that the incurring of further custodial time as a result of his unilateral failure to comply with the ICO would result in the Respondent taking action to mandatorily cancel his visa.
With respect, that submission must be rejected. The Applicant was on notice from October 2006 to change and moderate his offending ways. He continued to offend in circumstances where it can be reasonably accepted that he must surely have known that such offending would have constituted “fresh information” or would have involved him “incurring a liability on new grounds” such as to imperil his visa status to remain here. The terms of the ICO were read to him and explained to him. All he had to do was to comply with the ICO to avoid any further jail time. He unilaterally refused to comply with the ICO.
Taking into account all elements of the evidence speaking to this sub-paragraph (g), I am of the view that it militates strongly in favour of a finding that the totality of his offending in this country has indeed been very serious.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a)(ii), (a)(iii), (b)(ii), and (c)–(e) inclusive, and (g) I am of the view that the Applicant’s offending can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 the most recent offence; and
(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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
In terms of this first limb, it is, to my mind, not necessary to look further than the contentions made by the Respondent in its SFIC. They are put thus:
“Taking these in turn, the nature of the harm to the Australian community should the applicant commit similar offending is incredibly serious. Noting the nature of the applicant's past offending which have included robbery offences, dishonesty offences and driving offences, the potential harm to individuals and the Australian community is serious should he engage in such conduct again. Such offending causes substantial harm to the community both in terms of the mental and physical impacts of robbery and dangerous traffic offences, but also a significant financial cost to the community associated with emergency services and law enforcement activities.”[66]
[66]R1, [27].
There is little, if any distance between the parties on this first limb. In the Applicant’s SFIC, the following is said about the nature of harm arising from future offending by this Applicant:
“Regarding the nature of the Applicant’s offending conduct in the past, as outlined above, any future offending of a similar nature would have the potential to cause physical and/or psychological injury and financial loss to members of the Australian community.”[67]
[67]A1, [32].
It therefore follows that were the Applicant to re-commit any of his past offences, within any of the categories or themes attributable to his past offending, the impact on the Australian community could range from (at one level) the loss of property or other material loss or interference with enjoyment of that property, to very serious physical or psychological harm including to a potentially catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The respective contentions of the parties
In his Statement of Facts, Issues and Contentions (“SFIC”), the Applicant raises the following points said to be demonstrative of him now representing a low risk of re-offending:
·the Applicant’s evidence that he has abstained from using illicit drugs since January 2020, which was the time of his most recent removal from the Australian community. The difficulty with this contention is that it is the Applicant’s evidence and his alone. There is no independent and clinical corroboration or confirmation that he (1) has abstained from drugs at all and (2) what his prospects are of maintaining abstinence upon a return to the community;
·the Applicant’s further evidence is that he resorted to abusing illicit drugs as a “coping mechanism” to deal with the trauma of losing his parents and siblings in Iran. Again, this is the Applicant’s evidence alone and we do not know whether, or to what extent, any such trauma was causative of his historical difficulty with illicit drugs. Perhaps more importantly, we do not know the extent to which any future or similar trauma, were it to confront the Applicant, would be causative of his return to abusing those illicit substances. On the specific issue of the claimed childhood trauma being pre-dispositive of causing him to initially abuse illicit substances, the following transpired in cross-examination:
“MS SAUNDERS: You mentioned earlier today that you believe your drug use stems from childhood trauma. Is that right?
WITNESS: Yes.
MS SAUNDERS: Have you engaged in any type of therapy in relation to the childhood trauma.
WITNESS: No, never.
MS SAUNDERS: Why not.
WITNESS: I don’t want to even talk about it with anybody. I'm ashamed of it.
MS SAUNDERS: Would you agree that in order to address your drug dependency you would also have to address this trauma.
WITNESS: One hundred per cent, yes.
MS SAUNDERS: How would you go about addressing this childhood trauma.
WITNESS: I don’t know to be honest. I have no idea, how can I get the help for that, I don’t know. If I have to go to any therapy, I will. Anything, if I have to do anything to do that I would love to do that, yes.”[68]
·there is propounded to be an acknowledgment by the Applicant of a need for him to overcome his drug dependency as a precursor to benefitting his own health and playing a positive role in the lives of his two daughters. Nowhere in the Applicant’s history is there an intention to benefit his health. He unilaterally removed himself from the ICO which involved rehabilitative courses and measures designed to assist him overcome his addiction. It is difficult for him to maintain any sustainable argument about any consistently positive influence he has played in his daughters’ lives. His parental life thus far has been one of absence not pro-activity. That said, the Applicant’s older daughter’s evidence as it appears in her written statement[69] suggests he used to take her to the beach and the shops and that they speak regularly;
·the Tribunal is urged to accept that the Applicant has addressed his emotional concerns about continued drug taking by discussing them with family and friends. Apart from his wife, no other family or friend was called to give evidence to corroborate any such intention. While he may speak of a willingness to undertake rehabilitative programs to overcome his drug dependency and to no longer offend, his is a history of a failed engagement with the rehabilitative process. That failure extends to breaching an ICO which had the effect of causing him to be re-incarcerated. In other words, he was prepared to accept re-incarceration rather than to grit his teeth and suffer his way through the rehabilitation represented by the ICO;
·possible comfort is said to be taken from the remarks of the sentencing Magistrate who, on 18 November 2019, imposed the ICO on the Applicant. That comfort is said to be found in the Magistrate’s sentencing remarks about the nature of the Applicant’s offending and the fact that the court had been convinced that the Applicant had taken certain steps towards addressing his drug dependence. As I mentioned earlier in these reasons, it would be interesting to read the sentencing remarks of either the same Magistrate or the Magistrate who incarcerated the Applicant consequent upon his unilateral withdrawal from the ICO, assuming any such sentencing remarks exist. I daresay they would not be as favourable as those of the sentencing Magistrate on 18 November 2019;
·reference is made to certain sentencing remarks at the sentencing hearing on 13 April 2007 involving apparently good prospects of the Applicant’s rehabilitation, particularly if he could remain with his family and derive the benefit of his wife’s support in them both establishing a life in this country. The Applicant’s history since April 2007 has demonstrated that (1) he has not elected to remain with his family or prioritise them over his predisposition to abuse illicit drugs and (2) whatever “good prospects” the sentencing judge thought the Applicant had on sentencing him in April 2007 have been demonstrated to be, with respect, misplaced. The Applicant’s engagement with the rehabilitative process thus far has not been a positive one;
·reference is also made to certain sentencing remarks made when the Applicant was being sentenced in April 2007 which go no higher than to suggest whatever realisation the Applicant may have reached about difficulties that his drug addiction was causing him, that realisation went no higher than a document purporting to express some contrition but that otherwise predominantly contained expressions of self-pity as noted in the relevant sentencing remarks (and as noted in the Applicant’s SFIC)[70] the sentencing judge was not persuaded that the Applicant had demonstrated any genuine remorse for his offending;
·there is a ready acknowledgment in the Applicant’s SFIC that neither of the two abovementioned warning letters have been sufficient to prevent the Applicant from re-offending.[71] This submission is sought to be predicated on the basis that those warnings were not sufficient “at the time” they were provided to him to dissuade him from further offending. For reasons I have provided earlier, such a contention must be rejected. It is simply not borne out in his offending history, even if the more serious offending occurred in its first phase (ie pre mid-2010);
·the Tribunal is urged to take into account “[t]he Applicant’s most recent evidence”[72] in which it is said remorse can be found “for the totality of his offending”[73] this contention is sought to be grounded on the epiphany said to have been experienced by the Applicant during the time of his removal from the Australian community such that he has had time to reflect “on the entirety of his criminal history in Australia”.[74] To whatever extent such remorse may be found, I have difficulty in accepting the reliability of that evidence for two reasons. First, it is the Applicant’s evidence and his alone. Apart from what he says, we do not know the extent to which his reflections and musings have impacted on his predisposition to abuse illicit drugs and to very seriously offend. None of those reflections have been identified, explained and analysed by an independent clinician. Second, if the Applicant were truly remorseful for his offending, it is not unreasonable for this Tribunal to expect that he would have suffered his way through the ICO which was, in an ultimate sense, imposed upon him for his own benefit. It was a means of keeping him out of custody and it was also a means of him receiving community-funded treatment and rehabilitation for his addiction. Obviously, the levels of his remorse and intention to change his ways did not reach the level of causing him to engage with the rehabilitative process inherent in the ICO. If he is not prepared to involve and dedicate himself with the rehabilitative process via an ICO, why should the Tribunal now believe that he will do so upon a return to the community?
·Finally, it is said on behalf of the Applicant that (1) the fact that his visa has never been cancelled before and (2) the adverse experiences associated with visa cancellation; (3) the prospect of future visa cancellation; and (4) his prolonged period in criminal custody/immigration detention are all factors that speak to a low risk of re-offending. It is said that to whatever extent he may represent a recidivist risk, “it is not a material risk having regard to all of the circumstances of the case.” I reject the first three points about visa cancellation because of the two warnings the Applicant has received to date. One does not have to be an expert in Australian migration law to understand from either or both of these letters that if he kept on offending he threatened his visa status to stay here. As to the fourth point, it would be unsafe to concur with the submission about a low risk of re-offending and/or that the Applicant does not otherwise represent a material recidivist risk “having regard to all the circumstances in this case.” With respect, on any reasonable analysis, “all the circumstances in this case” speak to (1) the Applicant’s unresolved difficulties with illicit drugs and (2) an unknown level of recidivist risk such that it cannot be safely found to be any different now compared to what it was at the time of his most recent removal from the Australian community.
[68]Transcript, 48, lines 7–32.
[69]A6.
[70]See A1, 9[35], third bullet-point.
[71]A1, 10[35], first bullet-point.
[72]A1, 10[35], second bullet-point.
[73]A1, 10[35], second bullet-point.
[74]A1, 10[35], second bullet-point.

The next enquiry is whether there are substantial language or cultural barriers impeding his re-settlement in Iran. He lived there until he was 22–23 years of age. He has spent more than half of his life in Iran. He is fluent in English and Farsi.[243] In the SFIC filed on his behalf, we are told “[i]t can be accepted that the Applicant does not face language issues in his home country.”[244] But it is suggested that he will somehow “[…] likely to face some cultural issues in Iran. It can be accepted that the Applicant spent his formative years in Iran. However, the Applicant has spent a significant period of his life continuously in Australia.”[245]
[243]A4, 1[4].
[244]A1, 16[70].
[245]A1, 16[70].
I have difficulty in allocating any measure of traction to this submission about the Applicant facing cultural issues in Iran. The last seismic change in the way Iran is governed and controlled occurred in 1979. The same governance style or regime has been in place continually since 1979. Cultural attitudes and opinions about drug-taking in Iran have not changed since the Applicant made his way to Australia. In short, it can be safely found that he knows what to expect in terms of any cultural issues with which he may be confronted as a result of his unresolved issues with drugs. I am not able to discern any other cultural difficulties he would face upon a return to that country. Accordingly, this paragraph (b) of paragraph 9.2(1) of the Direction weighs neutrally in terms of whether or not the Applicant’s visa status to remain here is to be restored to him.
The final enquiry for this Other Consideration relates to an examination of any social, medical and/or economic support available to the Applicant in Iran. In his PCF in response to the question about any other problems he would face if returned to Iran, the Applicant said “I don’t have any place to leave or to go to as I was 21 years old when I left Iran If I go back to Iran I have to leave in street with out any support.”[246] [Errors in original]
[246]G, 81.
In his most recent statement (made on 23 September 2021) the Applicant said the following:
“If I were to be removed from Australia, I would face insurmountable hardship in Iran. I would likely be homeless like my brothers and back on the drugs. There is no warfare system in Iran like in Australia. Without money, it is very difficult to receive health treatment and rehabilitation in Iran.
My biggest fear is that I would literally have nowhere to go after landing at the airport if I was deported. I would be homeless immediately. With respect, it is laughable to suggest that my extended family in Iran will provide me with accommodation and financial support.”[247]
[247]A4, 2[13]–2[14].
In the SFIC filed on his behalf, there is a notation that he has two brothers and two sisters living in Iran.[248] In the SFIC, reference is made to the delegate’s conclusions that the Applicant’s siblings might have families of their own to look after and may not give him much financial assistance. The Applicant’s SFIC urges the Tribunal to reject the delegate’s finding that it was still reasonable to expect that the Applicant’s siblings would provide him with some level of support in the form of temporary accommodation and general assistance.[249] It is difficult to, on an outright basis, reject the finding made by the delegate. All too often in matters like this, the Tribunal is told of an applicant having (for example) siblings in their country of nationality but that absolutely no support would be forthcoming from them in the relatively dire circumstances of an applicant returning to that country without immediate prospects of employment and lodgings.
[248]A1, 16[73].
[249]A1, 16[73].
Such a contention is often put on a permanent basis – that is, that although an applicant may have family members in their home country, they should be discounted as people capable of providing some measure of social and economic support because an applicant will not be able to stay with that person(s) on a permanent basis. Such a contention can be rejected on the basis that it is surely more likely than not that, in the specific case of this Applicant, any one of his married sisters would be able to give him some type of emergency “landing pad” such that he received safe lodgings albeit for a period of 1, 2 or 3 months until such time as he managed to find employment and otherwise proceed to re-establish a life in that home country. It is difficult to accept that if this Applicant – notionally speaking – knocked on the two doors to the homes of his two siblings in Iran, each of those doors would remain closed to him. Indeed, during cross-examination, there appeared to be some acceptance that he would receive some measure of emotional support from one of his sisters in Iran.[250]
[250]See Transcript, 66, lines 37–46; 67, lines 1–35.
In terms of re-establishment, it can be accepted that Iran does not have the same level of social welfare and community-funded support as would be available to the Applicant in Australia were he to be returned to this community for the purposes of re-establishing himself. I accept that he has pre-existing contacts in Australia that would help him with re-establishment and that those contacts – apart from his four siblings – are not available to him in Iran. Again, he would be entitled to the same level of governmental support and benefits available to other citizens of Iran. Overall, the evidence is suggestive of the allocation of a moderate level of weight in favour of paragraph (c) of paragraph 9.2(1) of the Direction supportive of a finding that the Applicant’s visa status be restored to him.
In terms of overall weight allocable to this Other Consideration (b) I will, on the basis of the moderate weight I have allocated to sub-paragraphs (a) and (c) allocate a moderate level of weight to this Other Consideration in favour of revocation of the mandatory cancellation decision.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I am mindful of Kerr J’s comments in PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to this effect:
“57 I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
58 It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
59 Usually, but not always.”[251]
[251][2021] FCA 1235.
To the extent the views and interests of the Applicant’s Wife may be able to be taken into consideration for the purposes of this Other Consideration (c), regard must be had to the various references in the material where she either alludes to or confirms (to independent professionals/experts) the absence of any genuine or subsisting marital relationship between the Applicant and her. To the extent the marital relationship may revert to being a subsisting one upon any return of the Applicant to the Australian community, a slight level of weight can be allocated to the Applicant such that removal of the Applicant from Australia will adversely impact her.
With reference to any other victims of his offending, there is no evidence before me that has been called by the Respondent demonstrating any impact that the Applicant’s continued presence in Australia would have on his other victims. Without such evidence, it would be irresponsible to, on the basis of conjecture alone, make any sort of finding about the impact his continued presence in Australia would have on any of those other victims. My conclusion is that this Other Consideration (c) weighs slightly in in favour of revocation of the mandatory cancellation decision.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s Wife and his Older Daughter (who is an adult) are both citizens of Australia.[252] I will consider the impact on each of them in turn.
[252]See A5, 1[6]; A6, 1[5].
In her latest written statement (dated 22 September 2021) the Applicant’s Wife said the following:
“I am struggling at the moment to support my two daughters and myself, which is not easy. I have rental expenses, bills associated with electricity, water, food, telephone, Internet, supporting my two daughters and the family dog. Sydney is an expensive place to live.
If my husband was permitted to return to the family home in Maroubra, he could assist the family unit financially (by earning an income and assisting our daughters and myself). It would make a big difference in our lives and allow my husband to focus on positive contributions to Australia.
Our oldest daughter, [redacted], has recently started studying at university. Accordingly, she is focusing on her studies and her future. As such, [she] is not able to work full-time to assist the family unit.”[253]
[253]A5, 1[8]–2[10].
Later in her statement, she speaks of her and both children being “devastated” in the event of the Applicant’s removal from Australia.[254] According to her, the husband’s removal would “end our marriage forever”.[255] She says she cannot safely reside in Iran because she is a member of the Baha’i faith.[256] She is also not able to relocate with the children to Iran because the older child is studying at an Australian university while the other child is in primary school here: “It is just impossible to contemplate that we could all move to Iran to be with my husband.”[257]
[254]A5, 3[17].
[255]A5, 3[17].
[256]A5, 3[18].
[257]A5, 3[18].
The Applicant’s Wife appears to be experiencing apprehension and concern about the Applicant’s possible removal to Iran due to “adverse consequences flowing from COVID-19”.[258] The concern seems to be that Iran is not a country sufficiently resourced to adequately cope with a pandemic and that the Applicant would be exposed to a greater health risk in relation to the pandemic than if he were to remain in Australia. In a similar vein, she is experiencing apprehension and concern about the Applicant’s capacity to re-establish himself in Iran and the resources available to him in that country to address his claimed mental health issues.[259]
[258]A5, 3[21].
[259]A5, 3[22]–4[22]
Possible removal of the Applicant, according to his wife, “[…] would impact our children’s well-being and mental health and would be highly destructive to their lives.”[260] She does “[…] not know how to explain the situation to [the Younger Child] given her young and tender age. It would be very emotional and have lifelong adverse consequences.”[261]
[260]A5, 4[26].
[261]A5, 4[28]–[28].
With reference to the Older Child she says the following in her written statement dated 23 September 2021 about the impact of a removal upon her.
“In circumstances where my father loses his appeal in the Tribunal, it would have a devastating impact upon my mother, my younger sister, and myself. The family unit would be shattered, and it would have lifelong adverse consequences. My mother is of the Baha’i faith and would not be able to return to Iran on that basis (i.e. she would be in danger). Our life is in Australia.
My father’s lawyer asked how I would feel if my father was deported to Iran. My response was, “I don’t know what I would do”. I would be shattered and heartbroken, and I would be emotionally devastated. I also have concerns that my younger sister would be especially impacted, as she loves our father very much. Given her age (10), [the Younger Child] does not fully understand the precise circumstances as to how our father is in immigration detention and faces the prospect of being removed from Australia.”[262]
[262]A6, 2[10]–[11].
As was the case with her mother, the Older Child has “significant concerns for my father’s well-being in Iran.”[263] She regards her father’s extended family in Iran as “[…] drug users and not good people […]” She is experiencing similar concern and apprehension because “Iran does not have a welfare system like Australia. I will also be concerned about my father’s ability to receive satisfactory drug rehabilitation treatment for his drug problems.”[264]
[263]A6, 2[12].
[264]A6, 2[14].
The tenor of the evidence given by the Applicant’s Wife and Older Child in their written material was repeated in their oral evidence.[265] The contrary position is to be found in the court orders made on 4 June 2020. As mentioned earlier, those court orders allocate parental responsibility for the children to the Applicant’s Wife “to the exclusion of” the Applicant until the Younger Child attains the age of 18 years of age. At best, the Applicant can only have face-to-face contact with the Younger Child provided it is supervised by her maternal grandparents or as otherwise “deemed appropriate by” his Wife. Further, those orders are drafted to “ensure that [the Applicant] does not reside wherever the children reside.” In her evidence given in cross-examination, the Applicant appeared to accept the parameters and requirements of those orders.[266]
[265]For the oral evidence of the Applicant’s Wife, see generally, Transcript, 80, lines 34–46; 81, lines 1–26.
For the oral evidence of the Older Child, see generally, Transcript, 75, lines 32–45; 76, lines 30–40.
[266]See Transcript, 91, lines 33–47; 92, lines 1–34.
To my mind, any weight allocable to this specific question arising from this Other Consideration is to be primarily found in the apprehension and concern that both the Applicant’s wife and his daughter feel about losing the Applicant from their lives in a physical sense and to a slightly lesser extent, their perception that he has dim prospects of re-establishing himself in Iran. On this basis, the strength, nature and duration of the Applicant’s ties to his immediate family members comprising his wife and the Older Child carries a certain, but not determinative, weight in favour of revocation.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia and whether he came here as a young child. The Applicant arrived in Australia in April 2000 when he was 22–23 years of age. He was thus not a young child when he first came here. He has resided in Australia for just over two decades.
Regard must be had to the two tempering sub-elements necessary to be taken into account in the allocation of weight to this second component of paragraph 9.4.1. The Applicant commenced offending in 2003 which, in the context of the total time he has spent in Australia is relatively proximate to the time of his initial arrival. It is thus safe to find that he began offending “soon after arriving in Australia”. On that basis, pursuant to paragraph 9.4.1(2)(a)(i) of the Direction, I temper or limit any weight allocable to him under this Other Consideration (d).
The second enquiry occurs pursuant to paragraph 9.4.1(2)(a)(ii) of the Direction. It requires an ascertainment of the extent to which the Applicant can be said to have positively contributed to the Australian community. As I have earlier found, the Applicant has worked as a painter in Australia between 2015 and 2018 and commenced operating his own painting and decorating business in or about 2020. He has also given evidence (to which I have earlier referred) that he has also worked in aged care as an assistant nurse. With particular reference to this paragraph 9.4.1(2)(a)(ii) of the Direction it can be safely found that “more weight” should be allocated to the Applicant (for the purposes of this Other Consideration (d)) due to his relatively modest contributions to the Australian community that have only spanned a short period of time.
On the basis of the extent of the strength, nature and duration of the Applicant’s “other ties” to Australia, after balancing the tempering elements in paragraphs 9.4.1(2)(a)(i) and (ii), I am of the view, and I find that a moderate level of weight is allocable to the Applicant pursuant to this component of Other Consideration (d).
3. Strength, nature and duration of “other ties” – family and other social links
As best as I understood the material, the people to whom this particular question can be applied comprises the wife’s extended family. To repeat, her extended family comprises “[…] her parents, two aunties, one uncle, three siblings (two brothers and one sister), cousins, a niece, and a nephew”.[267] At the beginning of their marriage, the Applicant’s relations with his wife’s extended family were not positive. The major source of difficulty appears to have been that they each came from different religious backgrounds.[268]
[267]A5, 4[23].
[268]See Transcript, 66, lines 10–15.
The animosity and resistance of the wife’s extended family to the Applicant appears to have subsided and according to his evidence at the hearing, his relationship with them is “good now”.[269] On the assumption that his relationship with her extended family is “good now”, it would have been helpful to have at least one statement from one member of the extended family corroborating the claimed current state of the relationship and the extent, if any, of the strength, duration and nature of ties those extended family members have with the Applicant. There does not appear to be any such corroborative statement in the material. That said, I will accept the evidence of the Applicant and assume that he does have a measure of connectivity with his wife’s extended family. On this basis, I will allocate a moderate level of weight to this third question of paragraph 9.4.1(2) in favour of revocation of the mandatory cancellation decision.
(2) Impact on Australian business interests
[269]Transcript, 65, lines 40–46; 66, lines 1–8.
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

There is no reference to this component of Other Consideration (d) in the SFIC filed on behalf of the Applicant. Neither party otherwise ventilated this component of Other Consideration (d) at the hearing. I am not satisfied that removal of the Applicant from Australia, despite his work history in Australia, would significantly compromise delivery of a major project or an important service in Australia. Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a certain, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a certain, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: of moderate weight in favour of revocation;
(c)impact on victims: of slight weight in favour of revocation; and
(d)links to the Australian community: certain, but not determinative, level of weight in favour of revocation.
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a very strong level of weight in favour of non-revocation;
·Primary Consideration 2 carries a moderate level of weight in favour of non-revocation;
·Primary Consideration 3 weighs moderately in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b), (c) and (d), even when combined with the weight I have allocated to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 August 2021 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 321 (three hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

............................[sgd].....................................
Associate
Dated: 18 November 2021

Date(s) of hearing: 22 October 2021

Counsel for the Applicant: Dr Jason Donnelly, Barrister-at-Law (Direct Access Brief)

Advocate for the Respondent: Ms C Saunders, Senior Associate

Solicitors for the Respondent: MinterEllison
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G Section 501 G-Documents
(G1–G27, paged 1–132) – 3 Sep 2021

R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1–11) 11 Oct 2021 11 Oct 2021

R2 Respondent’s Tender Bundle
(S1–S10, paged 1–119) – 11 Oct 2021

R3 Respondent’s Further Tender Bundle
(FS1–FS11, paged 1–220) – 15 Oct 2021

A1 Applicant’s Statement of Facts, Issues and Contentions (paged 1–22) 23 Sep 2021 23 Sep 2021

A2 Applicant’s Reply (paged 1–6) 19 Oct 2021 19 Oct 2021

A3 Applicant’s Tender Bundle (paged 1–43) – 23 Sep 2021

A4
Statement of Shahrokh Pourabbas Aghbolagh (paged 1–6) with Annexures:

·     ‘A’ – Photos of the Applicant’s Sister and Brothers (paged 7–10);

·     ‘B’ – LandInfo Country Information regarding the welfare system of Iran (paged 11–32);

·     ‘B’ (no. 2) – text of article from ‘bbc.com’ (paged 33–34);

·     ‘C’ – text of article from ‘chatamhouse.org’ (paged 35–38);

·     ‘D’ – text of article from ‘addictioncenter.com’ (paged 39–41);

·     ‘E’ – European Monitoring Centre for Drugs and Drug Addiction special report dated April 2021 (paged 42–55);

·     ‘F’ – text of article from ‘observers.france24.com’
(paged 57–59).
23 Sep 2021 23 Sep 2021

A5 Statement of the Applicant’s Wife (paged 1–5) 22 Sep 2021 23 Sep 2021

A6 Statement of the Applicant’s 19 Year Old Daughter (paged 1–3) 23 Sep 2021 23 Sep 2021

A7 Note from the Applicant’s Younger Daughter
(1 page) 22 Sep 2021 23 Sep 2021
ANNEXURE B

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G	Section 501 G-Documents (G1–G27, paged 1–132)	–	3 Sep 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1–11)	11 Oct 2021	11 Oct 2021
R2	Respondent’s Tender Bundle (S1–S10, paged 1–119)	–	11 Oct 2021
R3	Respondent’s Further Tender Bundle (FS1–FS11, paged 1–220)	–	15 Oct 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1–22)	23 Sep 2021	23 Sep 2021
A2	Applicant’s Reply (paged 1–6)	19 Oct 2021	19 Oct 2021
A3	Applicant’s Tender Bundle (paged 1–43)	–	23 Sep 2021
A4	Statement of Shahrokh Pourabbas Aghbolagh (paged 1–6) with Annexures: · ‘A’ – Photos of the Applicant’s Sister and Brothers (paged 7–10); · ‘B’ – LandInfo Country Information regarding the welfare system of Iran (paged 11–32); · ‘B’ (no. 2) – text of article from ‘bbc.com’ (paged 33–34); · ‘C’ – text of article from ‘chatamhouse.org’ (paged 35–38); · ‘D’ – text of article from ‘addictioncenter.com’ (paged 39–41); · ‘E’ – European Monitoring Centre for Drugs and Drug Addiction special report dated April 2021 (paged 42–55); · ‘F’ – text of article from ‘observers.france24.com’ (paged 57–59).	23 Sep 2021	23 Sep 2021
A5	Statement of the Applicant’s Wife (paged 1–5)	22 Sep 2021	23 Sep 2021
A6	Statement of the Applicant’s 19 Year Old Daughter (paged 1–3)	23 Sep 2021	23 Sep 2021
A7	Note from the Applicant’s Younger Daughter (1 page)	22 Sep 2021	23 Sep 2021

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/5750

General Division )
Re: Shahrokh Pourabbas Aghbolagh
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   5 November 2021
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 August 2021 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

[sgd]

Senior Member Theodore Tavoularis

[2021] AATA 4269

5 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Outcome date	Offending resulting in custodial terms	Nature extent of custodial terms
12 April 2006	Break and enter building	Six months imprisonment
17 December 2013	Larceny value <=$2000	Seven months imprisonment (suspended)
18 November 2019	Larceny value >$5,000 & <=$15,000	Initially, intensive correction order imposed for eight months on a supervised basis See commentary in immediately following paragraph [‎64].

Outcome date	Offending resulting in non-custodial terms	Nature extent of non-custodial sentences
5 August 2003	Shoplifting value <=$2000	Fine $500 (costs of court – $61)
7 April 2006	Drive on road etc while license suspended	Fine $100, license disqualified for 1 year
2 May 2008	Driving while unlicensed to drive that class of vehicle	Dismissed (costs of court – $70)
22 June 2010	Shoplifting	Bond, 12 months
12 July 2010	Drive on road etc while license suspended	Dismissed (costs of court – $79)
17 December 2013	Goods in personal custody suspected of being stolen (not m/v)	Bond, 12 months (supervised)
17 December 2013	Shoplifting <=$2000	Bond, 12 months (supervised)
28 June 2017	Drive vehicle, illicit drug present in blood (1^st offence)	Fined $550, license disqualified for 9 months
28 June 2017	Drive vehicle, illicit drug present in blood (1^st offence)	Fined $330, license disqualified for 6 months
15 August 2017	Use uninsured motor vehicle	Fined $800
15 August 2017	Drive motor vehicle while license suspended (2nd+off)	Fined $1200, license disqualified for 2 years
15 August 2017	Use unregistered registrable Class A motor vehicle on road	Fined $800
15 August 2017	Use vehicle on road or road related area m/v tax not paid	Fined $800

Date(s) of hearing:	22 October 2021
Counsel for the Applicant:	Dr Jason Donnelly, Barrister-at-Law (Direct Access Brief)
Advocate for the Respondent:	Ms C Saunders, Senior Associate
Solicitors for the Respondent:	MinterEllison

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/5750
General Division	)