Sabbah and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 257
•24 February 2023
Sabbah and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 257 (24 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/3662
Re:Aaron Sabbah
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member George
Date of Decision: 24 February 2023
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 5 May 2022 that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
..............[Sgnd]......................
Senior Member George
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162
FYBR v Minister for Home Affairs [2019] FCA 500
Pavey and Minister for Home Affairs [2019] AATA 4198
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
24 February 2023
Mr Aaron Sabbah (“the Applicant”) is a citizen of Canada and, as at the date of this decision, is aged 49 years.[1] The Applicant first arrived in Australia in July 1980 and was granted a Class BB Subclass 155 Five Year Resident Return visa on 12 January 2011.
[1] Exhibit R2, G-Documents, G26, page 262.
On 7 March 2018, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) following criminal offending and a resultant term of imprisonment.[2] On 10 April 2018, the Applicant made representations through his representative, seeking revocation of the cancellation decision (“revocation request”).[3] On 5 May 2022, the Respondent decided not to revoke the cancellation of the Applicant’s visa.[4]
[2] Exhibit R2, G-Documents, G4, page 13.
[3] Exhibit R2, G-Documents, G4, page 13.
[4] Exhibit R2, G-Documents, G2, pages 4-5.
On 5 May 2022, the Applicant lodged an application for review of the 5 May 2022 decision before the Tribunal.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit R2, G-Documents, G1, pages 1-2.
The matter was listed for hearing on 30 and 31 August 2022, but the hearing was vacated and adjourned to enable the Applicant to lodge further witness statements.
On 6 and 7 October 2022, the hearing proceeded by audio-visual means. The Applicant was Self-Represented, and the Respondent was represented by Mr Sheedy of Sparke Helmore.
On 6 October 2022, the following witnesses gave evidence:
(a)the Applicant;
(b)Mr Jacques Ninio, the Applicant’s brother-in-law; and
(c)Mr William Kostopoulos, the Applicant’s friend.
On 7 October 2022, the following witnesses gave evidence:
(a)Mr Peter Kazzi, the Applicant’s potential employer;
(b)Ms Nathalie Ninio, the Applicant’s sister;
(c)Mr Alex Brookes, the Applicant’s son; and
(d)Ms Sheree Adam, the Applicant’s ex-partner.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
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 the Tribunal must be satisfied that there is another reason, pursuant to Direction No. 90 (“the Direction”),[6] to revoke the cancellation.
[6] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
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 a lengthy history of criminal offending, commencing in 1992 when he was aged 20 years.[7] It is appropriate to list the Applicant’s offending accordingly:
[7] Exhibit R2, G-Documents, G5, pages 41-46.
a)On 18 May 1992, the Applicant was convicted of deemed supply prohibited drug, possession of prohibited drug and goods in custody in the Local Court of New South Wales (“NSW”) at Balmain.
b)On 11 March 1992, the Applicant was convicted of assault occasioning actual bodily harm in the Central Local Court of NSW.
c)On 29 July 1993, the Applicant was convicted of supply prohibited drug in the District Court of NSW at Sydney.
d)On 28 February 1996, the Applicant was convicted of unlicenced driver and exceed speed in the Local Court of NSW at Waverley.
e)On 17 April 1996, the Applicant was convicted of obstruct police – serious assault on a police officer in the Magistrates’ Court of Queensland (“QLD”) at Southport.
f)On 3 June 1998, the Applicant was convicted of licence cancelled drive vehicle in the Central Local Court of NSW.
g)On 11 August 1998, the Applicant was convicted of drive in a manner dangerous to the public in the Local Court of NSW at North Sydney.
h)On 19 October 1998, the Applicant was convicted of obstruct police officer in the Magistrates’ Court of QLD at Southport.
i)On 21 October 1998, the Applicant was convicted of vag obscene language in public place, cc serious assault and ppr obstruct police officer in the Magistrates’ Court of QLD at Southport.
j)On 10 November 1998, the Applicant was convicted of drive in a manner dangerous to the public in the Local Court of NSW at North Sydney.
k)On 2 February 1999, the Applicant was convicted of state false address when requested, assault police/person assisting police and recklessly cause injury in the Magistrates’ Court of Victoria (“VIC”) at Melbourne.
l)On 16 February 2000, the Applicant was convicted of licence cancelled drive vehicle in the Local Court of NSW at the Downing Centre.
m)On 30 June 2000, the Applicant was convicted of drive on road etc when licence cancelled in the Local Court of NSW at Waverley.
n)On 16 November 2000, the Applicant was convicted of drive on road etc when licence cancelled in the District Court of NSW at Sydney.
o)On 9 February 2001, the Applicant was convicted of licence cancelled drive vehicle and drive on road when licence cancelled in the Local Court of NSW at the Downing Centre.
p)On 20 December 2002, the Applicant was convicted of robbery in company and detain with intent to hold for advantage in the District Court of NSW in Sydney. He received an indicative term of imprisonment of three years, for two counts of robbery in company, and an indicative term of imprisonment of seven years and four years respectively for two counts of detain with intent to hold for advantage. An appeal was dismissed by the Court of Criminal Appeal of the Supreme Court of NSW on 19 March 2004.
q)On 21 February 2003, the Applicant was convicted of drive while disqualified from holding a licence in the Central Local Court of NSW. This conviction was confirmed in the District Court of NSW on 4 November 2003 and the Applicant was sentenced to a period of nine months’ imprisonment and was disqualified from driving for two years.
r)On 5 February 2013, the Applicant was convicted of drive when licence suspended in the Local Court of NSW at Waverley.
s)On 10 April 2013, the Applicant was convicted of possess/attempt to anabolic or androgenic steroidal agent in the Local Court of NSW at Waverley.
t)On 28 April 2014, the Applicant was convicted of possess prohibited drug, refuse/fail to provide sample of urine when directed, fail/refuse to allow sample of blood to be taken, possess prohibited drug and driver use mobile phone when not permitted in the Local Court of NSW at Waverley.
u)On 17 July 2014, the Applicant was convicted of drive motor vehicle during disqualification period – 1st off in the Local Court of NSW at Burwood.
v)On 19 January 2015, the Applicant was convicted of use unregistered unregistrable Class A motor vehicle on road and drive motor vehicle during disqualification period – 2nd off in the Local Court of NSW at the Downing Centre.
w)On 1 June 2015, the Applicant was convicted of common assault in the Central Local Court of NSW.
x)On 7 June 2016, the Applicant was convicted of use carriage service to threaten serious harm, larceny value <= $2000, stalk/intimidate intend fear of physical/mental harm and take and drive conveyance w/o consent of owner in the District Court of NSW at the Downing Centre. He received indicative terms of imprisonment of 12 months, three months, four months and six months respectively for the offences.
y)On 24 November 2017, the Applicant was convicted of take part supply prohibited drug >indict. Qty (not cannabis) in the District Court of NSW at the Downing Centre. He was sentenced to a term of imprisonment of two years and 10 months. This is the index offending that triggered the decision to cancel the Applicant’s visa.[8]
z)On 21 February 2018, the Applicant was convicted of stalk/intimidate intend fear physical etc harm (personal) in the Central Local Court of NSW.
aa)On 31 August 2018, the Applicant was convicted of possess counterfeit money (not excepted counterfeit coin) in the District Court of NSW at the Downing Centre. He was sentenced to three years and six months imprisonment.[9]
[8] Exhibit R2, G-Documents, G4, page 13.
[9] Exhibit R2, G-Documents, G5, pages 41-46.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
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, the Direction has application.[10]
[10] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction is stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. 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.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND and offending
The Applicant first arrived in Australia when he was seven years old with his parents and sister.[11] The Applicant’s father was a citizen of Canada and the Applicant’s mother is a dual citizen of both Canada and Israel.[12] The Applicant’s mother, sister, children, some of his uncles and some of his cousins reside in Australia.[13] The Applicant also has several cousins and uncles in Israel, France, and Canada.[14]
[11] Exhibit R2, G-Documents, G60, page 369.
[12] Exhibit R2, G-Documents, G27, page 274.
[13] Exhibit R2, G-Documents, G27, page 274.
[14] Exhibit R2, G-Documents, G27, page 274.
Between 1988 and 2013, the Applicant left and returned to Australia on numerous occasions whilst travelling internationally.[15] The Applicant did not qualify for an Absorbed person visa under s 34 of the Act,[16] despite representations to the contrary.[17] On 1 October 2000 and 7 December 2000, having travelled to Greece and Israel, the Applicant did not declare his criminal convictions on his incoming passenger cards.[18]
[15] Exhibit R2, G-Documents, G14, pages 185-187.
[16] Exhibit A9; Transcript, page 134, lines 26-38.
[17] Exhibit R2, G-Documents, G105, page 552.
[18] Exhibit R2, G-Documents, G16, pages 194-195.
In his personal circumstances form, the Applicant described being removed to Canada in the following terms:
Whilst I have a Canadian passport, I have not lived there since I was 7 years old and I am not close with anybody in Canada. I do not know the government systems, I do not know the area, I am not fluent in French, I have no friends and I have no close family in Canada. If I was to be deported, I would be utterly lost and my entire life would be shattered. I would not even know where to go or what to do once I landed in the airport. But, more importantly, my family here would be devastated and I would not be able to bear their pain due to my mistakes.[19]
[19] Exhibit R2, G-Documents, G26, page 265.
The Applicant has work experience in scaffolding and as a personal trainer.[20] Mr Peter Kazzi gave evidence that, if released into the Australian community, he believed that the Applicant had employment prospects in the scaffolding industry.[21] The Applicant has a “prodigious work ethic”.[22]
[20] Transcript, page 39, lines 13-17.
[21] Exhibit A5; Transcript, page 95, lines 45-47.
[22] Exhibit R2, G-Documents, G6, page 57; G98, page 521.
Throughout his various terms of imprisonment, the Applicant has undertaken several courses including National Work Health and Safety General Construction Induction Training.[23] The Applicant also possesses a Certificate III in Cleaning Operations.[24]
[23] Exhibit A8.
[24] Exhibit A4.
The Applicant currently resides in Israel on a visa, having been voluntarily removed from Australia to Canada and then travelling from Canada to Israel.[25] The Applicant travelled on a Canadian passport.[26] He is residing with his family. The Applicant gave the following evidence about his family in Israel:
[25] Transcript, page 34, lines 23-38.
[26] Transcript, page 35, lines 1-2.
MR SHEEDY: Why did you decide to go to Israel? I think you said just a moment ago that you don’t have anything in Canada?
MR SABBAH: I’ve got family in Israel.
MR SHEEDY: What family do you have in Israel?
MR SABBAH: My auntie.
MR SHEEDY: And what’s her name?
MR SABBAH: Susan.
MR SHEEDY: And you’re living with her in Israel?
MR SABBAH: That’s right. Yes.
MR SHEEDY: Do you have any other family there?
MR SABBAH: Yes, I have uncles.
MR SHEEDY: How many uncles?
MR SABBAH: One.[27]
[27] Transcript, page 35, lines 4-15.
It is unclear exactly what access the Applicant has to money. Unilluminating dialogue under cross-examination went as follows:
MR SHEEDY: How much did you sell the property for?---
MR SABBAH: It probably went for $1.2 million.
MR SHEEDY: And how much of that did you end up keeping?---
MR SABBAH: My family kept about $800,000, I’d say.
MR SHEEDY: So you kept $400,000 of that?---
MR SABBAH: No, I’ve got nothing of that.
MR SHEEDY: So where did that money go?---
MR SABBAH: It went back to investors, so - - -
MR SHEEDY: It’s invested?---
MR SABBAH: Yes, it’s invested, so.
MR SHEEDY: Mr Sabbah, would you be able to bring that money out of those investments?---
MR SABBAH: No.
MR SHEEDY: Why is that?---
MR SABBAH: Because can’t. If I could, I’d be all right.
MR SHEEDY: But why can’t you do that?---
MR SABBAH: Invested, it’s been given to someone and they’ve invested the money.
MR SHEEDY: But Mr Sabbah, it’s still your money, isn’t it?---
MR SABBAH: No, not really.
MR SHEEDY: So you gave that $400,000 to somebody else?---
MR SABBAH: I gave it to investments and I’m just waiting now. So I’m having problems, I didn’t do any paper signed contracts, nothing like that, so.[28]
[28] Transcript, page 40, lines 22-4.
The Applicant’s father, Mr Joseph Sabbah, was a permanent resident of a Dementia Unit in an Aged Care facility in Sydney.[29] He suffered from numerous medical conditions.[30] The Applicant and his father had not seen each other for several years.[31] Nevertheless, whilst imprisoned in April 2021, the Applicant had expressed motivation “to be reunited with his family when he gets release and looking forward to reintegrated to the community”.[32]
[29] On 8 January 2023, the Applicant advised the Tribunal that his father had passed away the previous night.
[30] Exhibit A3.
[31] Exhibit A2.
[32] Exhibit A1.
The Applicant’s mother, Ms Judith Sabbah, provided evidence. The substance of this evidence is that the Applicant is greatly missed by his family. In a letter dated 15 February 2021, she wrote:
I love my son a lot we are very close together we talk at least once a day. He is a very good son to my family. He was the sole provider for our family. We have suffered financially and emotionally since my son has been in gaol, I just want him to come home to me.[33]
[33] Exhibit A8, page 12.
The Applicant’s friend, Mr William Kostopoulos, has observed Ms Judith Sabbah’s expressions of deep sadness at the potential removal of the Applicant from Australia.[34]
[34] Exhibit A8, page 8.
Presently, the Applicant’s sister Ms Natalie Sabbah has the primary responsibility for caring for Ms Judith Sabbah and previously also Mr Joseph Sabbah. Her evidence is clear that she is struggling with this responsibility, and she said in her evidence at the hearing:
I need help, I can’t do it on my own. I need help, Mum doesn’t drive. I actually need help. I can’t do it all the time, I’ve got a family too.[35]
[35] Transcript, page 103, lines 9-11.
The Applicant’s brother-in-law, Mr Jacques Ninio, gave evidence that the Applicant “needs his family, especially his children by his side, in order to give back to society rather than take”.[36]
[36] Exhibit A10.
In his personal circumstances form, the Applicant listed his relationships with the following children:
(a)the Applicant’s biological daughter “CS” who is seven years of age at the time of this decision;
(b)the Applicant’s stepson “DA” who is 14 years of age at the time of this decision;
(c)the Applicant’s stepdaughter “CA” who is 15 years of age at the time of this decision; and
(d)the Applicant’s niece “SN” who is 17 years of age at the time of this decision.[37]
[37] Exhibit R2, G-Documents, G27, page 271.
The Applicant also listed his biological son, Mr Alex Brookes. However, he is aged 20 years as at the time of this decision and, therefore, not a minor child.
In his personal circumstances form, the Applicant described his relationship with his minor children in the following terms:
[CS] and I have a very close relationship, we talk on a daily basis. She loves me dearly and needs her father home and back in her life.
Alex and I still have a very close relationship and speak to each other every few days. He intends moving to New South Wales to live with me on my release.
[DA] and [CA] cannot wait for me to get home. They have not been able to visit me due to Covid-19 but are excited at the prospect of my sentence coming to an end.
Sheree is having problems with her two previous children [DA] and [CA] and would like for me to come home and help her with the upbringing of her teenage children. My daughter [CS] is only 4 years old she is at a tender age, she will be growing up without a father figure in her life. My son Alex is maturing into an adult and needs a man to man guidance and support.[38]
[38] Exhibit R2, G-Documents, G74, page 465.
This is consistent with the evidence of the Applicant’s former partner,[39] Ms Sheree Adam, who said at the hearing:
MR SABBAH: And how does [CS] react now that I’m still not there?---
MS ADAM:She’s upset. She wants to see her dad. She’s always constantly asking me when she can go and see daddy. You know what I mean? Like she only gets to go and - she only gets to see you on FaceTime when you call her, or, you know, like, have a conversation with you over the phone. Like she’s not - that’s hardly a relationship, you know, for an effective relationship, you need to have the touch, you know, like you need to be able to hug and hold your children. That’s not a relationship to just be enough to just be able to speak to somebody.
MR SABBAH: So, if I was to come back to Australia, we’d be able to share [CS], is that correct?
MS ADAM:Yes, of course.[40]
[39] Transcript, page 107, line 42.
[40] Transcript, page 111, lines 30-44.
Similarly, when Mr Jacques Ninio was asked what kind of father he thought the Applicant was he said:
MR SABBAH: Okay. I’m just going to as you, what kind of a father do you think I am while you’ve seen me with [CS] and Alex?
MR NINIO:If you’ve ever seen a father who adores his children and more, that’s the father that Aaron is. He’s – he’ll do anything for his children. He’s by their side more than the mother would be. He’s an amazing father. Unfortunately, he did some things which were very silly in his past and has led him on the track. So he couldn’t be with his family. But he is a very good father and given the opportunity, I’d be very, very comfortable to leave my daughter with him at any time.[41]
[41] Transcript, page 74, lines 9-17.
In Mr Ninio’s evidence, the Applicant asked him to consider his relationship with his niece:
MR SABBAH: And, how would you consider my relationship with [SN]?
MR NINIO:My daughter adores you. My daughter always has adored you. You – [SN] is my daughter; that’s your niece. She absolutely adores you. And, she knows – she knows that you’ve done some wrong in the past, and she’s a very switched-on girl. She’s 16 now. But, she also knows that people who make mistakes have an opportunity to right themselves in life. So, we’re only praying that that opportunity is – is there for you.[42]
[42] Transcript, page 76, lines 4-10.
The Applicant described his relationship with his niece “SN” in the following terms:
[SN] is also treated like my own child and is very excited about the prospect of me coming home at the end of my sentence, we talk regularly on Zoom.
[SN] is my only niece that I have and I love her dearly she and I were very close. I treated her like as she was my own child. When I was incarcerated she was devastated because I would take her everywhere with me and my children they were all very close to one another. The possibility of my deportation will mean that she will never see me again nor will she have the same closeness to my children. She will not have the support from me when her parents are unable to support her in the future.[43]
[43] Exhibit R2, G-Documents, G74, page 467.
Mr Alex Brookes wrote of the feelings that he has for his father in a letter dated 10 February 2021, saying “I love my dad. He is a very protective dad”. Mr Brookes evidence is that he needs his father in his life and he would like “to be a family once again”.[44]
[44] Exhibit A8.
The Applicant has a lengthy criminal history beginning in 1992 with drug-related offences, including crimes of a violent nature. Since 2002, the Applicant has engaged in an increasingly serious pattern of violent and drug-related offending. Between 2013 and 2016 the Applicant was linked to organised crime figures.[45]
[45] Exhibit R2, G-Documents, G17, page 196.
On 20 December 2002, the Applicant was convicted of robbery in company and detain with intent to hold for advantage. He received an indicative term of imprisonment of 3 years for the two counts of robbery in company and an indicative term of imprisonment of 7 years and 4 years respectively for two counts of detain with intent to hold for advantage.
The Applicant appealed the convictions and on 19 March 2004, the appeal was dismissed in the New South Wales Court of Criminal Appeal and the sentence upheld. The judgment remarks described the offending in the following terms:
The appellant drove the car to the service station. During this time Mogilevsky and the appellant exchanged names. The appellant asked Mogilevsky what he sold and Mogilevsky told him “mainly pot and a little bit of pills”. The appellant said, “I run the eastern suburbs, nobody deals here without payment me rent”.
A few seconds later the car door opened and Mogilevsky was confronted by the two large men. One held a gun to Mogilevsky’s side and told him to get back in the car. Mogilevsky did so and the smaller of the two men sat in the back with him. The larger man sat in the passenger seat in front. The smaller man punched Mogilevsky to the side of the head and demanded his keys, wallet and mobile telephone. The larger man held a small silver gun. Mogilevsky testified: “I knew I was in trouble at that point, I was scared for my life.”
The appellant drove the car a short distance and then stopped. The larger man got out, took Mogilevsky’s keys and went to Mogilevsky’s Jeep. The two vehicles drove to Bondi Junction and stopped in Spring street outside the Commonwealth Bank. An old blue Tarago with three or four other occupants pulled up on the left. Mogilevsky was punched to the back of the head and told to look at one of the occupants in the Tarago. The hat or cap Mogilevsky was wearing fell to the floor of the Toyota. Mogilevsky was asked if he recognised the man in the Tarago. He replied in the negative. The man in the Tarago looked back at Mogilevsky and said: “Yeah, that’s him.”
The Crown contended that this man was the co-accused Dib.
Eventually, the three vehicles proceeded to Queen’s Park. All the occupants of the cars got out. Mogilevsky said that they marched him into the middle of the park “in the pitch black, in the darkness”. He thought he was going to die. He was bashed repeatedly. He said: “I had guns pointed at my head. .. – they made me kneel down, I had a gun to my forehead and a gun to the back of my head, and then they demanded money”.[46]
[46] Exhibit R2, G-Documents, G10, pages 139-140.
The facts as contained in the judgment continued that the men demanded $50,000 from the victim. The victim told the men that he was owed money by others. Consequently, they left the park and travelled to the unit of the second victim. The second victim was taken to an ATM and forced to withdraw $500 upon which he gave to the Applicant. The second victim was allowed to leave.
The first victim was taken to another ATM and forced to withdraw $1000. All three cars travelled to the home of the third victim who was told to get into the car and was then punched in the head. The third victim handed over his jewellery and his mobile phone. The group then travelled to the first victim’s home and his younger brother was instructed to bring money to the car. He bought $10,000 and a box which contained approximately 1200 ecstasy tablets. The group then travelled to the third victim’s home where a friend of his handed over $800.
After receiving the money, the Applicant warned the third victim “If you go to the police your family is dead”. The Applicant then told the first victim that he would now be selling the Applicant’s cocaine and if he bought from anyone else, he would “be dead”.
Under cross-examination, the Applicant denied the substance of this offending or otherwise said that he could not recall the details.[47] It is a heavy burden for an Applicant to satisfy the Tribunal that findings made to a criminal standard by a court of record, and upheld upon appeal, should not be accepted as facts. To do otherwise may be for this Tribunal to usurp the judicial function. Upon consideration of the Applicant’s evidence, the Tribunal is satisfied that the judgement of the Court of Criminal Appeal provides the more reliable account of the Applicant’s actions.
[47] Transcript, pages 50-54.
In his closing submission, the Applicant referred the Tribunal to a course that he had completed as evidence that he would not reoffend. He said:
This course that I done was the SMART Program. It goes for four months and you go there every day, all – like five days a week all day, from the morning to the afternoon, and thin if you’ll check my case notes, it says he doesn’t believe that I will reoffend and I have been rehabilitated. So, that’s coming from a guy that’s doing programs for many years.[48]
[48] Transcript, page 136, lines 34-38.
The evidence before the Tribunal indicates that the Applicant completed SMART Recovery Training in March 2007.[49] There is no evidence before the Tribunal of the Applicant having completed that course again. In a psychological report dated 20 February 2008, the Applicant was deemed to be a Medium risk of recidivism “with a 48.1% chance of recidivism within 12 months post release”.[50]
[49] Exhibit R2, G-Documents, G37, page 316.
[50] Exhibit R3, Tender Bundle, TB8, page 331.
The Applicant was paroled in June 2009 but was back in custody in April 2013.[51] In the interim, on 24 July 2009, the Applicant received a formal warning from the Department that further offending may impact his visa status.[52] The following dialogue regarding this warning occurred under cross examination:
[51] Exhibit R2, G-Documents, G11, page 158.
[52] Exhibit R2, G-Documents, G15, pages 190-191.
MR SHEEDY: Mr Sabbah, this is a letter from what was then called the Department of Immigration and Citizenship dated 24 July 2009, and you’ll see there it’s a letter that advises on 18 June 2008 the Department notified you that your visa may be liable for cancellation on character grounds. It goes on to say that a delegate of the Minister decided not to cancel your visa on character grounds. It states that:
“A delegate decided that you are to be given the following formal warning. Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”
Mr Sabbah, my question to you is you knew that this decision not to cancel your visa had been made, didn’t you?
MR SABBAH: Yes.
MR SHEEDY: And you knew after that decision that if you committed further offences, that would weigh heavily against you if your - - -?
MR SABBAH: Well, I didn’t know it would be like this. I didn’t know I would be out of the country, no.[53]
[53] Transcript, page 64, lines 7-25.
On 7 June 2016, the Applicant received indicative terms of imprisonment of 12 months, 3 months, 4 months and 6 months respectively for the offences of use carriage service to threaten serious harm, larceny value <=$2000-T2, stalk/intimidate intend fear of physical/mental harm-T2 and take & drive conveyance without consent of owner-T2. The sentencing remarks described the circumstances of the offence of take drive & conveyance without consent of owner in the following terms:
There are agreed facts in this matter. They are that on 11 May 2011 the offender acquired a white 2010 model Mercedes which was then changed to a registration [number plate]. In order to purchase this vehicle the offender obtained finance from BMW Australia in the order of $167,322 and the offender paid a $16,000 deposit. In the ensuing months, the offender repeatedly defaulted on the loan repayments so that BMW Finance Australia took action to repossess the car in accordance with the contract. On 31 December 2012 the vehicle was lawfully repossessed and towed to a holding facility at Moorebank run by Mannheim Australia.[54]
[54] Exhibit R2, G-Documents, G9, pages 118-135.
On 16 January 2013, the Applicant and an unknown male entered the car yard, diverted the security guards, and drove the Mercedes out of the yard at speed. A short time later the motor vehicle was reported stolen. On the same day, the Applicant drove the vehicle to Mr Monajed’s mechanical workshop in Botany.
The sentencing remarks described the offence of use carriage service to threaten in the following terms:
On 20 or 21 January 2013, Monajed received a phone call from the offender. The offender said, “You should not have given the police the car. You are responsible for losing my car. Why didn’t you ring me?”. Over the next few months the offender repeatedly contacted the victim via phone, text, message and Viber app messages demanding that he pay him money and making threats. The offender also visited the victim in person to make demands of him or sent an associate to visit the victim to issue demands. During this period the victim was attempting to find money to placate the offender. He also provided the offender with a Honda Accord which he bought cheaply in order to meet the offender’s demands that he provide him with a car.[55]
[Emphasis added]
[55] Exhibit R2, G-Documents, G9, pages 118-135.
The sentencing remarks described the offence of intimidation in the following terms:
At about 10:45am on 22 April 2014 the offender called Monajed and told him he was coming to get some money. When Monajed said he had none the offender said, “I don’t give a fuck, make sure you’ve got some organised”. At 1:55pm the offender attended Monajed’s workshop at Botany. The offender arrived in the silver BMW Bora sedan, accompanied by two males, one of whom he recognised as the offender’s associate Ed from two previous encounters described above. Both males were of a stocky build.
The offender exited the passenger seat and entered the workshop and walked into the office followed by the two males. On the CCTV from the premises the offender can be seen to be carrying a large black dildo in his right hand which he was swinging as he walked in. The offender gestured for Monajed to come into the office. Monajed walked over to the doorway of the office and at this point he noticed that there were two other males there. He saw that the offender had a black bar or a baton in his hand which was at this stage continually smacking on his open hand in an intimidating matter.
… Monajed felt extremely threatened and scared, believing the offender and the unknown males were going to assault him. As a result Monajed ran out of the workshop and down the road, out of sight of the workshop where he called police.[56]
[Emphasis added]
[56] Exhibit R2, G-Documents, G9, pages 118-135.
Under cross-examination, the Applicant denied that he was intending to hurt the victim. The dialogue at the hearing was as follows:
MR SHEEDY: Mr Sabbah, do you not think that he ran away because he was scared by you walking into his workshop accompanied by two other people, carrying a large black dildo?
MR SABBAH: If we were going do anything we would have done something. We’re not there to - I wasn’t there to hurt him, or hit, or anything like that. I’ve know the guy for a long, told you. I was just upset that he did - when he took my car. He drove my car. When I told him not to do it. I told him several times and he promised me and gave me his word, if anything happens it’s on my head. I’ll fix it. I’ll pay for it. That was his exact words. And he even says it in the text messages. If you read the text messages. He even agrees. That’s what I was angry about.[57]
[57] Transcript, page 49, lines 8-17.
The sentencing remarks described the offence of larceny in the following terms:
The offender briefly followed him out but then re-entered the workshop office and took $400 from the desk drawer in eight $50 notes. He then with the two males left the premises.[58]
[58] Exhibit R2, G-Documents, G9, pages 118-135.
On 24 November 2017, the Applicant was sentenced to a term of imprisonment of two years and 10 months for take part supply prohib drug >indict. Qty (not cannabis). The agreed facts were described in the sentencing remarks as follows:
On 30 January 2015 the offender knowingly took part in the supply of methylamphetamine that occurred between an uncover police office and co-offenders at a premises in Pyrmont. The offender’s role involved “delivering” for supply. The offender accompanied the co-offender to the Radisson Hotel. The co-offender collected drugs from the Radisson Hotel and the offender and co-offender delivered the drugs by motor vehicle from the Radisson Hotel to the Pyrmont premises at which the exchange occurred.
The Crown cannot prove that the offender knew that the quantity involved exceeded a commercial quantity of methylamphetamine, however, the offender must have know that it was not an insignificant quantity.[59]
[59] Exhibit R2, G-Documents, G8, pages 104-117.
On 31 August 2018, the Applicant was sentenced to three years and 6 months imprisonment for possess counterfeit money (not excepted counterfeit coin). The circumstances of this offence were described in the sentencing remarks by Her Honour Judge Girdham SC as follows:
The offence arises from events on 14 April 2016 when counterfeit banknotes were found in seven tied bundles within a satchel bag strapped across the offender’s body. The money had an apparent face value of $31,550. On the day of the search the offender was arrested and refused bail.[60]
[Emphasis added]
[60] Exhibit R2, G-Documents, G6, pages 47-67.
Her Honour went on to say:
Here the offender had notes of a substantial face value, he was, I have found, close to the source, he does not have good character, his prospects of rehabilitation are poor and whilst he is full of regret I am not satisfied he has remorse and his plea of guilty was late.[61]
[61] Exhibit R2, G-Documents, G70, pages 446
During the hearing the Applicant explained his late plea as follows:
MR SHEEDY: So, you were always intending to plead guilty at some point, is that right?
MR SABBAH: That’s correct. That’s correct.
MR SHEEDY: And, instead of doing that at the earliest opportunity, you decided to wait until the day of the trial. Is that right?
MR SABBAH: That’s correct. Yes. Well, I got to spend 15 months with my daughter. That was worth it.
MR SHEEDY: So, it was worth letting the court, and the prosecution, spend the time to prepare for a contested hearing, knowing all along that you were just going to end up pleading guilty?
MR SABBAH: I didn’t think of it that way at the time. I just thought about being with my daughter. If you are a father, you might understand.[62]
[62] Transcript, page 44, lines 34-45.
The Applicant became eligible to be released on parole on 20 May 2021.[63] On 18 May 2021, the Applicant was refused parole. The reasons were as follows:
I have taken into account your previous conduct while under supervision in the community. I have also taken into account your conduct in custody which, although considered satisfactory overall, indicates that you do not have a genuine interest in rehabilitative intervention and programs unless you consider that your participation will result in a personal benefit to you. I am not satisfied that you will be of good behaviour and comply with parole conditions. I am concerned that your release on parole at this time presents a risk to community safety.[64]
[Emphasis added]
[63] Exhibit R2, G-Documents, G6, page 66.
[64] Exhibit R4, Tender Bundle, TB8, pages page 212.
The Applicant was released on parole into immigration detention in February 2022 and was removed to Canada voluntarily.[65]
[65] Transcript, page 34, lines 5-13.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In considering the violent nature and seriousness of the Applicant’s extensive criminal offending, the Tribunal is of the view that the offences committed are very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant has antecedents for assaulting and obstructing police officers, which are regarded as serious.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[66]
[66] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant’s extensive history of custodial terms, particularly since his conviction of robbery in company and detain with intent to hold for advantage in December 2002, is a reflection of the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
It is unnecessary to repeat the Applicant’s extensive criminal history for the purpose of this consideration. The Applicant’s criminal offending commenced in 1992 with drug-related offences. This was the beginning of an extensive criminal history that spanned across New South Wales, Victoria, and Queensland over decades. This offending escalated to the commission of numerous offences for which the Applicant received lengthy custodial sentences.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Respondent has submitted that the Applicant’s “number of offenses which in isolation, let alone taken cumulatively are of themselves very serious”.[67] There is strength to this submission. Each of the Applicant’s offences represent breaches of the peace. In isolation, they are disruptive to the Australian community. In accumulation, the Applicant’s crimes have harmed the Australian community by making it a less safe place whilst also consuming substantial government resources.
[67] Transcript, page 122, lines 20-21.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction 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.
The Applicant did not declare his criminal convictions on incoming passenger cards dated 1 October 2000 and 7 December 2000.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction 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 Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
On 24 July 2009, the Applicant received a formal warning from the Department of Immigration and Citizenship that further offending may impact his visa status.
The sub-paragraphs in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
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 need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has engaged in extensive criminal offending, the nature of which has caused harm to the Australian community. He has done so over a period of decades. The Tribunal places weight on the Applicant’s refusal of parole in May 2021. The Tribunal is also not satisfied that the Applicant will be of good behaviour and not engage in any further criminal offending or other serious conduct. The balance of the evidence before the Tribunal is that the Applicant presents an ongoing risk to community safety.
The Tribunal is conscious that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
The Applicant has committed numerous violent and drug offences over a period of decades. The Applicant was warned that his offending would impact his visa status but continued to offend. The risk that the Applicant will engage in further criminal or other serious conduct is unacceptable.
This weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Family violence does not arise on the evidence before the Tribunal. Accordingly, this consideration is not relevant.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
Primary Consideration 3: The best interests of minor children in Australia AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3), respectively, contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.3(4) of the Direction requires the Tribunal to consider the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact).
Despite the Applicant’s criminal conduct, he has managed to maintain a relationship with several minor children. These are his biological daughter “CS”, his stepson, “DA”, stepdaughter “CA”, and his niece “SN”. The evidence before the Tribunal is that the Applicant has meaningful relationships with all these children. Indeed, the Tribunal places particular weight on the evidence of Ms Adam and Mr Ninio as to the closeness of the relationship between the Applicant and “CS” and “SN”.
Sub-paragraph (b) of paragraph 8.3(4) of the Direction causes a decision-maker to examine the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
On the evidence before it, placing particular weight again on the evidence of Ms Adam and Mr Ninio, the Tribunal is satisfied that the Applicant would place a positive parental role in the lives of “CS”, “DA”, “CA”, and “SN” if released into the Australian community. In making this finding, the Tribunal notes that “CS” is aged seven years and has many years until she becomes an adult. Lesser weight is placed on “SN”, “CA” and “DA” given their respective ages of 17 years, 15 years, and 14 years.
Sub-paragraph (c) of paragraph 8.3(4) of the Direction points to the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child.
There is no evidence before the Tribunal that the Applicant’s extensive prior criminal conduct, or the risk of future criminal or serious conduct, has had, or will have, a negative impact on any minor child. Accordingly, this consideration is not relevant.
Sub-paragraph (d) of paragraph 8.3(4) of the Direction causes a decision-maker to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[68]
[68] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44].
The evidence indicates that the Applicant has successfully maintained contact with “SN”, “CA”, “DA”, and “CS” by electronic means through his periods of absence whilst incarcerated and then subsequently whilst in detention and overseas. Although the Tribunal may infer that the children would benefit from having a physically closer relationship with the Applicant, there is also no evidence that they would suffer ongoing harm by his physical absence.
Sub-paragraph (e) of paragraph 8.3(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.
The evidence is clear that Ms Adams already fulfils a parental role in relation with to “CS”, “DA”, and “CA”. Mr and Ms Ninio fulfil parental roles in relation to “SN”.
Sub-paragraph (f) of paragraph 8.3(4) of the Direction causes a decision-maker to examine any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The evidence of the views of the children has been presented through other witnesses; principally the Applicant, Ms Adam and Mr Ninio. The Tribunal places weight on the Applicant’s evidence that he has a close relationship with “CS” and that “DA and “CA” are keen to see him again.[69] Similarly, the Tribunal places weight on the Applicant’s evidence that “SN” is very excited with the thought of seeing him again.[70]
[69] Exhibit R2, G-Documents, G74, page 465.
[70] Exhibit R2, G-Documents, G74, page 467.
Sub-paragraph (g) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
There is no evidence before the Tribunal that any child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence before the Tribunal that any child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. Accordingly, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider that factors (c), (g) and (h) of paragraph 8.3(4) of the Direction apply to the Applicant’s offending or circumstances. The remaining sub-paragraphs of paragraph 8.3(4) of the Direction, in their totality, weigh heavily in favour of revocation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[71]
[71] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision-maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant moved to Australia in 1980, when he was seven years old, and commenced his criminal offending in 1992.
(b)The Applicant has committed several violent offences.
(c)The Applicant has committed numerous non-violent offences, which include multiple drug and traffic offences.
(d)The Applicant has offended against police.
(e)In 2009, the Applicant received a formal warning that his offending would impact his visa status.
(f)Except for periods whilst imprisoned on other offences, the Applicant’s criminal repeatedly offended over a period from 1992 to 2018.
(g)The Applicant’s criminal conduct is very serious.
(h)The Applicant’s preparedness to commit crimes raises serious character concerns.
The sub-paragraphs of paragraph 8.4 of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) International non-refoulement obligations
The Applicant has not raised any claims with respect to Australia’s non-refoulement obligations and no claim arises on the evidence. Accordingly, a consideration of Australia’s non-refoulement obligation is not relevant.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is aged 49 years old. He has declared that he has “untreated mental health issues”,[72] although he has previously “stated that he was well and healthy”.[73] To the extent that the Applicant requires medical or other treatment, there is no evidence before the Tribunal that this cannot be obtained in Canada.
[72] Exhibit R2, G-Documents, G27, page 275.
[73] Exhibit R3, Tender Bundle, TB8, page 330.
The Applicant has not lived in Canada since he was seven years old. In his evidence, the Applicant stated he would be lost if he is removed to Canada, and he would be “utterly lost and my entire life would be shattered”.[74] The fact that the Applicant immediately moved from Canada to Israel after his removal from Australia is evidence of his lack of connection with Canada. Nevertheless, this lack of a connection is not evidence of any substantial language or cultural barriers.
[74] Exhibit R2, G-Documents, G26, page 265.
The Applicant submits that he has no close family or friends, no home, and no job in Canada. Furthermore, the Applicant states that were he to return to Canada he would not be able to see his family again. Nevertheless, the Applicant may have the opportunity to see some members of his family in “Thailand or Bali where it’s not too far for them to travel”.[75] In the absence of a helpful explanation for the missing proceeds of the sale of property – being the $400,000 that had been “invested”[76] – the Tribunal is not satisfied that the Applicant is devoid of funds and cannot assist his family members to visit him.
[75] Transcript, page 139, lines 3-4.
[76] Transcript, page 40, lines 27-31.
Accordingly, the Tribunal is satisfied that the extent of the Applicant’s impediments if removed from Australia carries significant weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration 9(1)(c) requires that decision-makers must consider the impact of the s 501 or s 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.
The Tribunal notes the full range of the Applicant’s criminal offending with an attendant number of victims. Nevertheless, there is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victims. Accordingly, the Tribunal does not regard this consideration to be relevant.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2, respectively:
(a) the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.[77]
[77] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27].
The Applicant has resided in Australia for 41 years, albeit much of this time in recent decades has been spent in custody or on bail or remand or parole. The evidence of Mr Kostopoulos and Mr Kazzi indicate that the Applicant has a limited, but close, pro-social network in Australia.
The Tribunal is satisfied that the impact of its decision on the Applicant’s immediate family members in Australia would be significant. Ms Ninio needs the Applicant to assist her with caring for their mother. The Applicant’s mother deeply misses him. Mr Brookes needs his father in his life. The Applicant remains very close to Ms Adam and her children.
Accordingly, the Tribunal is satisfied that the Applicant’s strength, nature, and duration of his ties to Australia carry heavy weight in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations are not relevant;
(b)extent of impediments if removed carry a significant weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
(c)impact on victims are not relevant; and
(d)links to the Australian community carry a heavy weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
CONCLUSION
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 the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then 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, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa;
(b)Primary Consideration 2 is not relevant;
(c)Primary Consideration 3 weighs heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa;
(d)Primary Consideration 4 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa; and
(e)The weight attributable to the four-listed Other Considerations as found above.
The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations.
A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal 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 reviewable decision made by the delegate of the Respondent dated 5 May 2022 that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 139 paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision:
Date of Written Reasons:
24 February 2023
24 February 2023
Date of Hearing:
6 and 7 October 2022
Solicitor for the Applicant:
Self-Represented
Solicitor for the Respondent:
Mr M Sheedy
Sparke HelmoreANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
A1
NSW Department of Corrective Services Case Notes
A
Undated
10/8/2022
6/10/2022
A2
Letter of Jack Goldberg (Social Worker) – ‘Request by son Henry Sabbah to visit his father Joseph Sabbah’ (01.03.2021)
A
1/3/2021
10/8/2022
6/10/2022
A3
Letter of Jack Goldberg (Social Worker) – ‘Permission for Mr Henry Sabbah to be granted permission to visit his ailing father Mr Joseph Sabbah’ (17.03.2021)
A
17/3/2021
10/8/2022
6/10/2022
A4
Certificate III in Cleaning Operations (12.03.2021)
A
12/3/2021
10/8/2022
6/10/2022
A5
Statement – Peter Kazzi (23.03.2021)
A
23/3/2021
10/8/2022
6/10/2022
A7
Statement – Anna Hoang (20.04.2021)
A
20/4/2021
10/8/2022
6/10/2022
A8
Bundle of Documents:
1. Letter – Aaron Sabbah
2. Letter – Judith Sabbah
3. Letter – Alex Brookes
4. Letter – Sheree Adam
5. Letter - William Kostopoulos (duplicate of A6)
6. Letter - Montefiore Residential Care - Joseph Sabbah (duplicate of A2)
7. Letter - Peter Kazzi (duplicate of A5)
8. Letter – Jack Goldberg, Social Worker Montefiore Residential Care (duplicate of A3)
9. Various certificates of completion: courses and training
10. Letter - Anna Hoang (duplicate of A7)
A
Various
15/5/2022
6/10/2022
A9
Email – Commonwealth Ombudsman [screenshot] (undated)
A
Undated
6/10/2022
A10
Witness Statement – Jacques Ninio (15.09.2022)
A
15/9/2022
6/10/2022
R1
Respondent's SFIC
R
Various
11/8/2022
R2
G-Documents
R
Various
1/6/2022
R3
Respondent's Tender bundle
R
Various
1/6/2022 & 10/8/2022 (duplicate)
0
8
0