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

Sarian and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3808 (14 November 2022)
Division:GENERAL DIVISION
File Number: 2022/7218
Re:Mickael Paul Henry Sarian
APPLICANT

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

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date:14 November 2022
Place:Melbourne

The Tribunal affirms the decision under review.
............................[sgd]............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of France – Class BW Subclass 856 Employer Nomination Scheme (Permanent) visa – failure to pass good character test – substantial criminal record – sexual and violent offending – polysubstance drug abuse – non-refoulement obligations – whether another reason to revoke the mandatory cancellation – Ministerial Direction No. 90 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Crimes Act 1958 (Vic)
Sex Offenders Registration Act 2004 (Vic)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Citizenship, Migration, Migrant Services and Multicultural Affairs [2022] FCAFC 99
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Sethi v Sarian (Magistrates Court of Victoria, Magistrate Bott, 5 October 2021)
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Transcript of Proceedings, FYBR v Minister for Home Affairs [2020] HCATrans 56
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Department of Foreign Affairs and Trade (Cth), ‘France Country Brief’, France (Web Page) < align="left">Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) < States of America Department of State Bureau of Democracy, Human Rights and Labor, ‘France 2021 Human Rights Report’ (2021 Country Reports on Human Rights Practices, 12 April 2022)
United States of America Department of State Office of International Religious Freedom, ‘France 2021 International Religious Freedom Report’ (2021 Report on International Religious Freedom, 2 June 2022)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
14 November 2022
INTRODUCTION

Before 14 October 2021, the Applicant held a class BW Subclass 856 Employer Nomination Scheme (Permanent) visa (‘the visa’). On that date, the visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[1] This followed the Applicant’s sentencing on 5 October 2021 for 12 offences, to which he pleaded guilty in the Moorabbin Magistrates Court.
[1] Exhibit R1, 86.
The Applicant made representations about revoking the cancellation decision within the permissible period.[2] On 25 August 2022, after considering his representations, the Respondent refused to revoke the visa cancellation (‘non-revocation decision’).[3]
[2] Ibid 126.
[3] Ibid 5.
On 5 September 2022, the Applicant applied to the Tribunal to review the non-revocation decision.[4]
[4] Ibid 2.
A hearing was held in person at the Tribunal’s Melbourne Registry on 2 and 3 November 2022. The Applicant was represented by Ms Dhanji of Counsel, instructed by the Southport Community Legal Service. The Respondent was represented by Ms Liddy, a solicitor with Sparke Helmore Lawyers.
The Tribunal is under a statutory obligation to decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[5] These reasons are provided six working days after the hearing and within the obligatory 84-day period.
[5] Migration Act 1958 (Cth) (‘the Act’) s 500(6L).
For the following reasons, the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act; and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUE FOR DETERMINATION
Failure of the character test arises as a matter of law.[6] Because of the Applicant’s criminal convictions on 5 October 2021, and the imposition of a prison sentence of 12 months or more, he does not pass the character test.[7] Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. It therefore remains to be determined whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[8] The Tribunal is required to consider the available evidence at the time of its decision, rather than what was before an earlier decision-maker.[9] The task of determining whether there is ‘another reason’ was elaborated upon by the Full Court of the Federal Court (‘FCAFC’) in Viane[10] and Bettencourt.[11] In the latter, their Honours reflected favourably on the approach taken in Viane and summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[6] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63].
[7] The Act ss 501(6)(a), 501(7)(c).
[8] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[9] Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134].
[10] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
[11] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.
More recently, in Plaintiff M1/2021,[12] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[12] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 (Plaintiff M1/2021), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 90
In making its decision, the Tribunal must comply with ministerial guidance made under s 499(1) of the Act, which is known as ‘Ministerial Direction 90’ (‘the Direction’).[13] The Direction contains mandatory and aspirational considerations guiding the exercise of powers under the Act.[14]
[13] The Act s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
[14] Matthews v Minister for Home Affairs [2020] FCAFC 146, [45]; BOE21 v Minister for Citizenship, Migration, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22].
The following principles, at cl 5.2 of the Direction, provide a framework within which decision-makers should approach their task:
(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 noncitizens 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 noncitizens 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 measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(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; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ This does not preclude the Tribunal, from giving an ‘other’ consideration the equivalent weight to, or greater weight than, a primary consideration.[15]
[15] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[16]
EVIDENCE
[16] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The Tribunal has considered the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’),[17] and the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’).[18] The following documents were tendered into evidence:
[17] Dated 14 October 2022.
[18] Dated 20 October 2022.
(a)“G-Documents” numbering 153 pages;[19]
[19] Exhibit R1. G documents are so named because they are provided under The Act s 501G. They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision.
(b)Supplementary G-documents numbering 149 pages;[20]
[20] Exhibit R2.
(c)France 2021 Human Rights Report;[21]
[21] Exhibit R3.
(d)2021 Religious Freedom Report, France, by United States Department of State;[22]
[22] Exhibit T1.
(e)Applicant’s Statement dated 13 October 2022;[23]
[23] Exhibit A1.
(f)Witness Statement of Applicant’s mother dated 17 October 2022;[24]
[24] Exhibit A2.
(g)Witness Statement of Applicant’s father dated 11 October 2022;[25]
[25] Exhibit A3.
(h)Witness Statement of Applicant’s sister (undated);[26]
[26] Exhibit A4.
(i)Psychiatric Report of occupational and forensic psychiatrist Dr Leon Turnbull dated 20 August 2021;[27]
(j)Community Correction Order (‘CCO’) Contravention Report dated 21 October 2020;[28]
(k)Forensicare report dated 21 September 2021;[29]
(l)Counselling notes for six sessions conducted in September and October 2021;[30]
(m)Report dated 2019 on Anti-Semitism by Coordination des Associations et des Particuliers pour la Liberte de Conscience;[31]
(n)Online article by Feiza Ben Mohamed in ‘World, News’ dated 1 August 2022, titled ‘More and more Jews leaving France due to anti-Semitism’;[32]
(o)Online article by an unknown author on an unidentified website dated 12 February 2019, titled ‘Spate of anti-Semitic acts sparks outrage in France’;[33]
(p)Online article by Siam Goorwich in the Spectator dated 2 September 2022, titled ‘France can’t keep its Jews safe’;[34] and
(q)Letter from the Applicant’s girlfriend dated 27 January 2022, whom the Tribunal will refer to as “Ms MJ”.[35]
Applicant’s evidence
[27] Exhibit A5.
[28] Exhibit A6.
[29] Exhibit A7.
[30] Exhibit A8.
[31] Exhibit A9. This is a European nongovernmental organisation focussed on freedom of religion or belief (
[32] Exhibit A10.
[33] Exhibit A11.
[34] Exhibit A12.
[35] Exhibit A13.
Background

At the commencement of his oral evidence, the Applicant made a non-religious affirmation and confirmed he does not identify with or practice any religion. His oral evidence took up most of the first hearing day, a summary of which follows.
Transition from France to Australia
The Applicant is a 30-year-old citizen of France[36] and has returned there four times since arriving in Australia in July 2004.[37] His native language is French, which he spoke exclusively until arriving in Australia. He and his parents continued to speak French at home, but the Applicant said with the passage of years he now speaks only ‘a little bit’ of French. He agreed, however, that he could restore his language competence ‘in time’, if needed.
[36] Exhibit R1, 57.
[37] Ibid 115.
The Applicant said he suffers from dyslexia which, when coupled with his lack of English-language skills on arrival in Australia, caused him to be bullied at school and involved in fights. He and said it took him four years to learn English. The Applicant recalled being expelled from two high schools for bad behaviour before being enrolled in a special high school focussed on sports. He ceased his education at Year 10 because school wasn’t his ‘strong suit’. The Applicant said he worked for a fast-food business for a couple of years and then undertook a baker’s apprenticeship but did not complete it. He also referred to intermittent work as a welder and general labourer. The Applicant said he committed himself for a time to body building and mixed martial arts (‘MMA’), in which he had some success.
Drugs and offending
The Applicant said illicit drugs took over his life, leading to crimes and imprisonment. He has a limited memory of some crimes and no memory of others because of prolonged polysubstance abuse. His drug use commenced with smoking marijuana at the age of 16, and by 18 he was using speed, MDMA, and other ‘party drugs’. By the age of 20 he was addicted to heroin and crystal methamphetamine (‘ice’). The Applicant said his drug use resulted from association with negative peers who he wanted to impress, stating: ‘I’m just easily influenced’. He said his drugs of choice were mostly heroin and ice, but included ‘Xanax, Valium, GHB – a cocktail – all of the above’. The Applicant agreed he used many illicit drugs daily, until his imprisonment 18 months ago; but he claimed to have remained abstinent in custodial settings since.
The Applicant agreed that intervention orders (‘IVO’) were taken out against him in the past, following conflicts with an ex-girlfriend who used heroin. He claimed that her use of heroin contributed to one of his relapses. The Applicant recalled one incident when this girlfriend ‘begged him to come home’, claiming she had visited police and removed an IVO preventing contact between them, which turned out to be untrue. The Applicant said their arguments resumed, which caused neighbours to call the police. He recalled one argument at a carwash where he claimed his girlfriend was hitting him in the back of the head, which caused him to grab her by the shoulders, ‘put her out of the car’, and ‘push her’ when she tried to take his mobile telephone. He claimed she ‘made a scene’ by saying he hit and abused her, which resulted in charges and four months imprisonment. He estimated this incident occurred in 2018. After release, the Applicant said he was re-imprisoned for a further two months because his conduct breached an earlier suspended sentence. The Applicant agreed there were other incidents with this girlfriend, when he was served with a Family Violence Safety Notice, and when he kicked a door because she locked him out of the house. He referred to police giving him ‘a couple of warnings’. The Applicant claimed he would have been bailed and not placed on remand for months after one incident if a neighbour had not got involved and provided a statement to police that the Applicant hit his girlfriend. When asked whether he pleaded guilty to the unlawful assault charge, the Applicant responded: ‘Yeah – I guess. I pushed her – I don’t deny doing it’.
The Applicant agreed he was found carrying a knife in the past, which he blamed on ‘running around with the wrong crowd’, thinking he was tough, and wanting to impress girls. He now realises he was ‘young and stupid’ and that it is unacceptable to ‘walk around with a knife’. He also recalled being convicted of Affray after a fight at a railway station. He said he was ‘probably drunk at the time’ but now realises his conduct was wrong, stating: ‘You can’t be walking around assaulting people’. He again contextualised his conduct as arising from ‘bad influences and trying to fit in and be cool’. The Applicant claimed his ‘mentality has started to change gradually’ and he will not engage in further violence if released.
In terms of his sexual offending, the Applicant said he could only remember ‘bits and pieces’ but did know he was ‘doing something wrong’, despite being ‘detached from reality’ because of drug use. During cross-examination, the Applicant agreed he masturbated on public transport several times, directing his conduct towards females and on one occasion, a child. The Applicant said that, despite being unable to recall this conduct, he is ‘deeply ashamed’ and feels sorry for the victims. He is also remorseful for the effect his conduct had on his family and himself, stating: ‘I’m 30 years old – I should have my life together – I deeply regret it’. The Applicant said he is also sorry for his theft offences, which were committed to fund his addictions.
Other conduct
The Applicant referred to three incidents in prison which caused him to be punished. These consisted of two ‘altercations’, including one where he claimed to have been hit from behind and was forced to defend himself. He recalled being placed in isolation following both incidents for a period of three to four weeks and having lost his privileges. In the other incident he recalled that a cellmate ‘made brew’, which the Applicant said he was aware of but did not help to produce. He and his cellmate appeared before the Prison Governor and received a fine, a warning, and ‘restricted buy-ups for a month’. There is no evidence to corroborate the Applicant’s recollection of these three incidents.
The Applicant agreed that notwithstanding few drug offences being recorded in his criminal history, he has purchased and used illicit drugs like cannabis, heroin, ice, and GHB persistently during the last decade.
Rehabilitation and protective factors
The Applicant recalled that he undertook a two-week ‘detox’ involving counselling sessions in the past; but could not recall when this was or the organisation that provided it. He claimed to have ‘made a decision to quit’ and followed through on this commitment by staying ‘clean’ for four years. When challenged that his criminal history showed convictions every year since 2010 except for 2011, 2017, and 2019, the Applicant thought he ‘might have got [his] dates mixed up’ but insisted not all his offending was attributable to drug use. By way of example, he said his offending in 2018 occurred during a period of abstinence. When asked why he relapsed, the Applicant stated: ‘When I came out of jail I was in a bad place, I lost my girlfriend, lost my private rental, and was living in my parent’s place again…I had a bit of depression and started hanging around with an ex of mine that was using once a week’.
The Applicant was asked about six previous CCOs and agreed he did not successfully complete any of them. He explained that he worked nights on some occasions, slept during the day, had no driver’s licence, and relied on public transport. He explained that these factors, inconvenience, and the fact he ‘didn’t care and didn’t feel the need to do all of these things’, is why he failed to complete the CCOs. The Applicant said he previously believed treatment and rehabilitative conditions were a ‘waste of time’ and agreed his history reflected frequent non-compliance with judicial orders. He contends that his circumstances are now different after 18-months of self-reflection in custodial settings.
The Applicant claims to have matured since his most recent arrest and better understands the triggers causing relapse. He said this includes not associating with people who take drugs. He now realises how important freedom is, and finds it hard to cope with separation from his girlfriend and family. The Applicant said he undertook five sessions with Caraniche while in immigration detention, which is a community counselling provider. This was undertaken remotely by video, and he found the sessions helped him better understand his ‘triggers, relapse prevention, and how to cope with depression and [his] current situation’. When asked if these sessions could be continued if released, he responded: ‘It could be’. He also referred to undertaking an introductory session with a counselling provider but could not recall who it was. He is still waiting on a call back following that session, to help him ‘find the right counsellor’ if released.
The Applicant said his parents, sister, and Ms MJ are his main sources of emotional, and practical support. His parents are also his main source of financial support. The Applicant said he and Ms MJ have been in a relationship for three or four years and both used heroin and other drugs during that time. The Applicant said Ms MJ told him ‘she got clean’ after his arrest and is currently on the Methadone Program. He said she has several comorbidities including bipolar disorder, relies on the Disability Support Pension, lives in a housing commission unit, studies, and wants to start a family with him. The Applicant agreed that prior to his arrest he and Ms MJ were found using heroin by police at times when the Applicant was claiming ‘complete abstinence’ to CCO authorities, while failing to answer calls for scheduled drug counselling sessions or to attend eight urinalysis tests. The Applicant said he ‘wasn’t really committed’ to abstinence at that time but is more motivated now. When asked how he would respond if Ms MJ is still taking drugs, the Applicant said he believes this not to be the case but will confirm it upon release and end their relationship if her abstinence claim is untrue.
Intentions if released
If released, the Applicant said he intends to ‘keep his head down’, stay away from drugs and bad influences, live with his mother, find work as a welder or machine operator, save money, procure private rental accommodation, buy a car, resume his relationship with Ms MJ, be a role model for his nieces, and return to MMA training. In terms of work, he claimed to have completed welding certificates while in custody, which will help him find work quickly. These certificates were not provided to the Tribunal. The Applicant said he also intends to undertake ‘more counselling, rehab, detox’ and comply with his obligations under the Sex Offenders Registration Act 2004 (Vic).
Relationship with his nieces
The Applicant said he has not met his youngest niece who was born while he was imprisoned, but that he has a ‘normal relationship’ with the older niece whom he previously used to babysit on occasions and take to the park. He has not had much contact with his nieces since being imprisoned. His sister and her partner look after his nieces, and the Applicant’s mother also helps care for them most days. When asked by Ms Liddy whether his obligations under the Sex Offender’s Register may affect the relationship with his nieces, the Applicant said he had not inquired into this but would do so and comply with any restrictions.
Extent of impediments and non-refoulement claims
The Applicant said his parents had done everything to look after him since he was a child and provided him with the ‘tools to succeed’. He said they would be devastated if he was returned to France. He would find it hard to cope without their assistance. The Applicant initially claimed to only have ‘distant family’ in France, who he hasn’t ‘spoken to for years’. He subsequently agreed, however, that he has grandparents, aunts, uncles, cousins, and a close friend of his father’s, and had spoken to some relatives to test their interest in supporting him if he returned. The Applicant explained he had ‘hinted strongly’ about his possible return to France but said these relatives ‘want nothing to do with [him]’. He claimed to have ‘read between the lines’ but agreed he did not directly request their support.
The Applicant said he last worked as a welder for three or four months just before the COVID-19 Pandemic hit in early 2020. He claimed to have no savings or superannuation in Australia, having withdrawn the balance (approximately $8000) under COVID-19 early release provisions. The Applicant said he has no medical or psychological conditions, takes no medications, and aspires to an immediate return to work if released. Notwithstanding his past work skills, he believes it may take him ‘six months to get a job’ or secure support in France comparable to Centrelink, because of his unfamiliarity with the French system. The Applicant referred to administrative impediments such as not having a current passport or identification card. He agreed that he could get a copy of his birth certificate but thought it would take time to secure documents.
The Applicant said he was most worried about the first few months of resettlement in France and being able to provide for his needs until he finds work. He stated this situation ‘won’t be long-term’ and felt he could eventually adapt but expected a difficult transition. When asked if his parents could assist him with paying for a room and other expenses until he established himself, the Applicant said he had not discussed this with them but felt they would: ‘I’m sure…they’ll give me some money – they’re not going to leave me hanging’.
The Applicant was asked about the relatively recent non-refoulement claims made on his behalf. He agreed that he had never personally experienced anti-Semitism in France. When asked if he could be personally threatened by anti-Semitism the Applicant initially said he did not think so, but later stated: ‘very minimally – it can happen but probably not likely’.
Evidence of the Applicant’s mother
The Tribunal has considered a letter from the Applicant’s mother dated 17 October 2022. During the hearing she adopted her statement, and her oral evidence traversed the family’s move to Australia and eventual decision to stay. She recounted the Applicant’s difficulties at school and said she became aware of his drug-taking in or about 2010. She recalled seeing him affected by drugs when he was living by himself, which left her ‘shocked’. The Applicant’s mother said her son’s addiction and crimes resulted from associations with ‘bad people’. If allowed to remain in Australia she would support him ‘200 percent’, including by letting him live with her and encouraging him to sever links with past influences. She believes this should include Ms MJ, whom she only knew ‘from a distance’. The Applicant’s mother was unaware of Ms MJ having any past drug use issues.
The Applicant’s mother said she had previously provided the Applicant with financial support, including while he was imprisoned so he could ‘eat properly and be in contact’. When asked why the Applicant had not responded to his family’s past support, she expressed confidence that he is now more motivated to do so. This is because his current circumstances had been a ‘wake-up call’.
The Applicant’s mother said the Applicant’s past problems caused her to have a breakdown. If he was removed to France, this would be like a ‘wound that is always open’. She would find it particularly hard to know he is in another country without close family support and fears losing him ‘completely and forever’. The Applicant’s mother believes his removal would be a ‘mess’ because he could not fill in the requisite forms for accommodation and other support. She said her parents were old, in ill-health, and could not assist the Applicant. She claimed her brother and family cannot assist him because they intend relocating to another country because of anti-Semitism. No evidence was available to the Tribunal from the Applicant’s mother’s parents or brother.
The Applicant’s mother said she is an observant member of the Jewish faith and claimed France is ‘not safe for Jewish people’. She had not personally been subjected to discrimination but recalled some incidents and an occasion where she complained to police about a neighbour who was ‘a bit scary’.
Evidence of Applicant’s father
The Tribunal has considered a letter from the Applicant’s father dated 11 October 2022. He adopted his statement as true and correct and stated he does not identify with any religion. He said the Applicant lived in France until the age of 12 and had a ‘turbulent’ childhood because of dyslexia, which caused him difficulties at school. The family moved to Australia in 2004 after the Applicant’s father was offered a professional role, with a company that he continues to work for to the present day.
In his oral evidence the Applicant’s father recounted the Applicant’s expulsion from two schools because of fighting, then his attendance at a special school for ‘kids with problems’, where he completed Year 10, and then commenced an apprenticeship. It was during this time the Applicant’s father became aware of the Applicant’s cannabis use, then ice and heroin, which caused him to become ‘moody and withdrawn from the family’. He became aware of the heroin use after his wife found syringes in the Applicant’s room. The Applicant’s father said he enrolled the Applicant into a ‘Detox program’, which he only ‘attended for a few weeks and left’, before encountering ‘bad people’ and relapsing. The Applicant’s father also referred in documentary evidence to an unsuccessful attempt to control the Applicant’s drug addiction on the Methadone Program, which is uncorroborated.
The Applicant’s father said he has supported the Applicant financially and emotionally, talks with him regularly by telephone, and visits him when permitted. He said the Applicant’s past and present circumstances had adversely affected the family, including as a factor in his separation from the Applicant’s mother. He said if the Applicant was allowed to remain in Australia, he would support him and encourage him to ‘stay on the right path’, including through continuing financial, practical, and emotional support.
The Applicant’s father said the Applicant has no family or financial support in France, would not be able to get a job because of an absence of qualifications, and ‘doesn’t speak French fluently’. He said the Applicant’s maternal grandparents are still alive but are elderly and his grandfather has a serious illness. The Applicant’s father said he has not had a relationship with his two siblings in France for a decade, so they could not assist the Applicant. He is ‘more than willing and able to support [the Applicant] personally and financially,’ but said the Applicant does not have a bank account or French documents.
The Applicant’s father said the Applicant has matured since being imprisoned 18 months ago, remained drug free, and better realises the adverse consequences of his past choices. He said the Applicant is ’preparing to look for employment and is willing to engage with health professionals to assist him with his drug addiction’.
The Applicant’s father said he is concerned about the Applicant’s safety because of anti-Semitism in France. He referred to ‘several mass killings of Jews two or four years ago’ and other incidents but did not particularise these.
Other evidence
The Tribunal has considered a letter from Ms MJ that is almost a year old[38] and appears to be linked to the Applicant’s abandoned appeal against his sentence.[39] The Tribunal has also considered an undated letter from the Applicant’s sister.[40] Neither author was called to give oral evidence.
[38] Exhibit A13.
[39] Exhibit R2, 69.
[40] Exhibit A4.
PRIMARY CONSIDERATIONS
Tribunal consideration: Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s offending in Australia commenced 12 years ago, when he was 17 years of age, and has continued throughout adulthood. He has been found guilty of crimes every year between 2010 and 2022, except for 2011, 2017 and 2019. He was initially found guilty in 2010 of possessing a controlled weapon without excuse, for which a conviction was not recorded and a fine imposed. In May 2012 he was found guilty of unlawful assault, affray, and recklessly causing serious injury, for which he received a three-month suspended sentence of imprisonment. He was also placed on a CCO and ordered to perform 125 hours of community work. In 2014 he was convicted of carrying an offensive weapon on court premises, for which a further two-year CCO, fine, and 125 hours of community work were imposed. In February 2018 he was convicted of his first family violence offending, including contravention of a Family Violence Intervention Order (FVIO), two counts of contravening a family violence safety notice, and unlawful assault. Other convictions during this appearance were failing to answer bail and criminal damage, which resulted in an aggregate sentence of four months’ imprisonment, a further CCO, and compensation order. The Applicant contravened the CCO and in February 2020 received further sentences of imprisonment and another CCO. In October 2021 he was again convicted of contravening a CCO. On 19 May 2022, he was also convicted of an earlier theft offence.[41]
[41] Exhibit R2, 69.
Sentencing remarks dated 5 October 2021 show that the Applicant pleaded guilty to 12 charges.[42] He received an aggregate term of 12 months’ imprisonment in relation to 10 charges, a conviction and the imposition of a 12-month CCO with Treatment and Rehabilitation conditions commencing upon his release from prison for another charge; and no conviction was recorded for the remaining charge, albeit with a month’s imprisonment ordered to be served concurrently with the aggregate sentence. It is noteworthy that the sexual conduct charges occurred on public transport, while the Applicant was on bail, and one of the victims was a child.[43] The Applicant spent 153 days in pre-sentence detention after his sexual offending, which the Court found to be ‘inherently serious’.[44] He was placed on the Sex Offenders’ Register for eight years.[45] Her Honour also noted the Applicant’s past failure to respond to multiple treatment orders and CCO’s:
‘On each occasion, breach proceedings have resulted due to lack of compliance with the order either by way of conditions for the offending or both…You are a psychologically unafflicted man. It is supported by the psychological material, forensic psychiatrist, Mr Turnbull. There have been no barriers to your rehabilitation. You have simply chosen not to engage in treatment’.[46]
[42] Ibid 30 [6].
[43] Ibid 28 [5]-[6]; 29 [4]-[9]; Exhibit R2, 7-16; 24-25; 27-28; 33; 120; 133; 146.
[44] Exhibit R1, 31 [23].
[45] Exhibit R1, 32 [26].
[46] Ibid 30 [1]-[16].
The Applicant was assessed as unsuitable for a further CCO.[47] His lawyer in those proceedings referred to the Applicant having ‘drug and alcohol issues’ as the ‘root cause of the offending’.[48] The Court noted he had been ‘plagued’ by drug use, which included ‘a myriad of drugs, heroin, methylamphetamine, GHB’, with daily use of heroin at times.[49]
[47] Exhibit R1, 31 [3].
[48] Ibid 27 [12].
[49] Ibid 29 [16]-[21]; 31 [29].
In addition to the Applicant’s criminal history, other conduct may be relevant to the Tribunal’s assessment of this primary consideration. This includes the Applicant’s concession that he purchased and used illicit drugs like heroin and methamphetamine over a long period, despite an absence of charges or convictions for possessing these drugs.
In her closing submissions Ms Dhanji submitted that the Applicant’s convictions on 5 October 2021 were not at the ‘uppermost end of seriousness’. This included because the sentences received were at the lower end of available maximums under the Crimes Act 1958 (Vic).
Ms Liddy submitted that the Applicant’s offending since the age of 17 is very serious and includes violent offending, family violence, and repeated failure to comply with court orders. She said his sexual offending was brazen, in the sense that it occurred on public transport in the middle of the day, and some of it was directed at a child. Ms Liddy said the Applicant knew his conduct was wrong, as evidenced by covering himself up when a man walked by, so as not to draw attention to himself.[50]
[50] Exhibit R2, 7; 33.
Tribunal findings: The nature and seriousness of the conduct
The Applicant’s criminal history includes several offences identified in the Direction as ‘very serious’, namely offences involving violence, sexual offending, or against women or children. He has been sentenced by a court on 11 different occasions.[51]
[51] Exhibit R2, 69-88.
The Court referred to the Applicant’s sexual crimes as ‘inherently serious’ and to his theft offences as ‘not insignificant’, given their repeat nature.[52] The sentences received by the Applicant are routinely below the statutory maximums available. For, example, the maximum penalty for the sexual crimes he was convicted of is five years’ imprisonment for each count.[53] He was instead sentenced to a 12-month aggregate term of imprisonment, which encompassed the five sexual offences. Nevertheless, imprisonment is a sentence of last resort[54], and the court’s recourse to increasingly lengthy periods of imprisonment highlights a steady escalation in the objective seriousness of the Applicant’s crimes.
[52] Exhibit R1, 31 [23]-[25].
[53] Crimes Act 1958 (Vic) s 48.
[54] See e.g. Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) <
The Applicant’s offending spans more than a decade and there are few meaningful periods where convictions are not recorded, or he was not imprisoned, or under some form of conditional liberty. Various sentencing approaches and rehabilitative opportunities have not deterred him from illicit drugs or reoffending. The cumulative effect of his crimes since 2010 has imposed considerable costs and consequences on victims and the broader community.
The totality of the Applicant’s offending and other misconduct is very serious and reflects a persistent disrespect for Australia’s law enforcement framework.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Addiction
The Applicant claimed he started using drugs recreationally from the age of 17. He initially used cannabis, then was ‘introduced to heroin, methylamphetamine and GHB’.[55] He contextualised his slide into persistent addiction as mixing with ‘the wrong crowd and bad influences’. He claimed to have quit drugs for four years after completing two weeks of rehabilitation, during which he became proficient at bodybuilding and MMA.[56] This appears to loosely coincide with the evidence of the Applicant’s father, who said he enrolled the Applicant into a ‘Detox program’, but which he only ‘attended for a few weeks and left’, before encountering ‘bad people’ and relapsing.
[55] Exhibit A1, 2 [7].
[56] Ibid 2 [10].
The Applicant said he relapsed on one occasion after a relationship with his girlfriend ended because of family violence and he was imprisoned. He explained this was because he started to ‘hang around a woman who was using heroin’.[57] The Applicant said his drug use worsened to the point that he has no recollection of his sexual offences because he was ‘mixing ICE and GHB and also heroin and Unisom (which is a pill that you mix with heroin to make it stronger…).’[58] The Court has similarly noted the Applicant’s claim he had ‘no real recollection’ of this offending.[59]
[57] Ibid 2 [14].
[58] Ibid 3 [18]-[19].
[59] Exhibit R1, 32 [1].
The Applicant said that during his relationship with Ms MJ since 2019 they were both addicted to heroin and used the drug until his recent arrest. He claims that since his incarceration, however, Ms MJ told him she stopped using heroin and is on the Methadone Program.
Offending and remorse
The Applicant stated in his documentary evidence:
‘During the offending I was under the influence of ice and juice. I do not normally take these drugs and it was only a handful of times. I would not have offended if I did not take these drugs and am extremely remorseful. I do not wish to ever mix / take drugs anymore and this experience has really changed my mind set on drugs and have come to a real turning point in my life.’[60]
[60] Exhibit R1, 66.
Conduct in custodial settings
The Applicant stated he was involved in two fights while imprisoned, causing him to be placed in lockdown for three to four weeks. He claimed his actions were in self-defence. He also referred to an incident where he and a cellmate were punished for home brew being found in their cell, but claimed he was not responsible for its production. There is no independent evidence about what occurred during these three incidents. The Applicant referred to developing greater insight and maturity during the last 18 months, because possible deportation had ‘opened [his] eyes’ to the unacceptable nature of his past conduct.
Rehabilitation
At his most recent sentencing, the Magistrate said the Applicant’s rehabilitation prospects were ‘somewhat diminished’ because of past failure to ‘address the precursors to [his] offending’.[61] This was despite six community-based dispositions[62] with therapeutic conditions like:
‘supervision, assessment and treatment including testing for drug abuse or dependency, assessment and treatment including testing at a residential facility for withdrawal from or rehabilitation for drug abuse, there's mental health assessment included and offending behaviour programs.’[63]
[61] Ibid 28 [29]-[30]; 31 [18].
[62] Ibid 29 [28].
[63] Ibid 28 [14]-[20].
The Applicant said he does not intend to use drugs again, will better engage with rehabilitative opportunities, and believes he ‘should be given…a chance to prove [him]self’.[64] He referred to undertaking five one-on-one drug counselling sessions.[65] There is evidence about recent exploratory contact with Odyssey House; and the Tribunal notes a report in evidence containing counselling notes for sessions attended by the Applicant between September and October 2021.[66]
[64] Ibid 66.
[65] Ibid 66.
[66] Exhibit A7.
The Tribunal has considered the Applicant’s father’s evidence about unsuccessful rehabilitative efforts organised by the family. Additionally, a report for the Court dated 21 October 2020 refers to the Applicant’s repeated CCO breaches.[67] Under his most recent CCO the Applicant accrued 16 unacceptable absences, with the report stating in part:
[67] Exhibit A5.
‘Mr Sarian has had periods of time where he has completely disengaged with Community Correctional Services (CCS) and failed to take accountability for missed supervision sessions or responsibility to re-establish engagement with CCS.
Although Mr Sarian presents as polite during in-person and phone supervision appointment, his engagement has appeared artificial and minimal at best only providing short responses to queries put to him and failing to elaborate when requested. During attendance supervision, Mr Sarian appears to partake in impression management, failing to identify any issues or concerns and failing to demonstrate insight into his offending behaviours.
…
Throughout Mr Sarian’s Order he has failed to demonstrate any change in engagement with the supervision process and has remained only superficially and minimally engaged best and has had periods of time where he has completely disengaged with CCS entirely despite appropriate interventions/supports being implemented.
As part of Mr Sarian’s order induction process, Mr Sarian was referred to a standard episode of counselling (4 sessions) with the possibility to extend if required. Mr Sarian was referred to a Taskforce agency for the purposes of Drug counselling.
On 13/08/2020, Mr Sarian attended his initial drug counselling appointment by way phone contact. It is noted that Mr Sarian engaged in conversation and reported complete abstinence from substance use at the time, a further session scheduled for 27/08/2020.
On 27/08/2020, Mr Sarian failed to answer his phone for the drug counselling session and could not provide a valid reason for his non-attendance, as such, this absence has been deemed unacceptable.
…
On 02/10/2020, Mr Sarian failed to answer his phone for a drug counselling session and did not attempt to contact task force to reschedule the appointment. As such, a further appointment was scheduled for Mr Sarian on 12/10/2020 to which Mr Sarian also failed to attend as directed or provide a valid reason for his absence. Mr Sarian has since disengaged from drug counselling services although task force agency have attempted to contact Mr Sarian by way of phone calls and text messages to no avail.
As per Order obligation, Mr Sarian has been directed to attend drug testing (urinalysis) on 8 separate occasions…and failed to attend on all occasions. Although Mr Sarian is claiming abstinence from substance use, he has failed to attend urinalysis as directed and as such, his current substance use cannot be confirmed.
It on several occasions 2020, Mr Sarian along with his partner, was located by Victoria police to be parked in Mr Sarian’s vehicle in a high drug trafficking area of Richmond. Mr Sarian was approached by Victoria police to which she presented as being hostile. Vehicle search was completed and nothing untoward was located, Mr Sarian and partner were provided Covid- 19 restriction infringements at the time.
On 24/09/2020, Mr Sarian and partner were located in Mr Sarian’s vehicle once again in a high drug trafficking area of Richmond. Mr Sarian, his partner and two unknown associates were approached by Victoria police in questioned. Mr Sarian, his partner and associates admitted to recent drug use and reported to have attended Richmond for the use of the safe injecting room. Vehicle search was completed and there were numerous capped and uncapped syringes located within the vehicle…
Although Mr Sarian is reporting to be abstinent from substance use to CCS and to his drug counsellor, he has failed to attend urinalysis on 8 occasions to confirm his abstinence, furthermore, Mr Sarian has been involved in field contacts with Victoria police in known high drug trafficking areas of Richmond and admitted to the Officers is recent substance use and was located in syringes within his vehicle.
…
Mr Sarian engaged the services of New View Psychology, specifically Mr John Hunter – registered psychologist, for the purposes of meeting his mental health needs. Mr Sarian attended his initial appointment with Mr Hunter on 12/03/2020, this session was essentially an intake session… A follow-up appointment was scheduled for Mr Sarian to attend with Mr John Hunter on 19/03/2020 however Mr Sarian failed to attend and failed to reschedule. At this point, Mr Sarian became disengaged from mental health support.
This service provided Mr Sarian with further direction to reengage with mental health services on several occasions… A further session was scheduled for Mr Sarian to attend on 07/08/2020 however Mr Sarian failed to attend or reschedule further appointment and has remained disengaged from mental health support.
…
Conclusion and Recommendation
Mr Sarian has been afforded five previous opportunities to engage in CCO’s imposed by the court, each attempt proving futile. Mr Sarian is not used present opportunity afforded to him to address his criminogenic risk factors and reduce his risk of recidivism. In addition to the concerns highlighted above, Mr Sarian has been charged with offending (sexual activity directed at another person) which predate his current Order and has been served a summons for a court date of 22/12/2020.
Mr Sarian has demonstrated a consistent pattern of disengaging from services implemented across all Order conditions which speaks to his lack of motivation to undergo treatment and rehabilitation.
Throughout the entirety of the Order, Mr Sarian failed to demonstrate any real motivation for change and appeared to be presenting with impression management and superficial engagement.
In light of the above, it is respectfully recommended that this order is cancelled and Mr Sarian is resentenced on the original offending.’
Risk

When sentencing the Applicant for his most recent offending, the Court considered him a ‘significant risk to the community’ if he relapsed into drug use,[68] which had ‘plagued [him] on and off for many years’.[69]
[68] Exhibit R1, 32 [6].
[69] Ibid 29 [16].
In March 2020, the Applicant ‘returned a risk level of “High” for reoffending and scored high in almost all criminogenic needs’ after being administered a Level of Service, Risk Need Responsivity (LS/RNR) assessment tool.[70]
[70] Exhibit A6, 2,
The Tribunal has considered a report by occupational and forensic psychiatrist, Dr Leon Turnbull, dated 20 August 2021. In response to questions asked by the Applicant’s then lawyer, Dr Turnbull expressed the following opinions:
(a)Although the Applicant had a ‘reduced proclivity towards sexual offending’, if he relapsed, then ‘anything could happen’.[71]
(b)The Applicant ‘needs a solid plan to stay abstinent including appropriate supports’.
(c)The Applicant has no ‘diagnosable psychiatric conditions’ and there are ‘no psychiatric hindrances to rehabilitation. The main thing is to stay off illicit substances’.
[71] Exhibit R1, 30, [22].
A September 2021 Forensicare report[72] noted that the Applicant ‘is not on any medications or treatment’, and ‘denied current symptoms of depression or psychotic disorder’.
[72] Exhibit A7.
Protective factors
In terms of protective factors, the Applicant invokes abstinence from illicit drugs during the last 18 months, the prospect of stable accommodation with his mother and perhaps his girlfriend, a supportive family, work intentions, and further progressing his rehabilitation. The Tribunal has considered a letter from Ms MJ dated January 2022.[73] She reports suffering serious physical and psychological conditions, past suicide attempts, drug addiction, and purported participation in the Methadone Program as at the date of her letter. Ms MJ states she hopes to remain abstinent from drugs, complete her undergraduate study, and in time marry the Applicant and have children together. She expressed confidence about remaining abstinent from illicit drugs because ‘the last time [the Applicant] only did two weeks jail and when he came out, we stayed clean for three months’.
[73] Exhibit A13.
Closing submissions - risk
Ms Dhanji submitted that the harm caused by the Applicant’s offending was not of the most serious kind and his recidivism risk ‘hinges almost exclusively on whether he returns to drug use’. She said his drug addiction and offending from a young age were when he was less able to form moral judgements or make well-reasoned decisions. Ms Dhanji submitted that since his most recent imprisonment, the Applicant had remained abstinent, developed greater maturity, insight, and progressed his rehabilitation, such that he better understands the triggers and influences resulting in relapse, which he intends to avoid. She said several protective factors also ameliorate his recidivism risk to an acceptable level. This includes further counselling and the threat of future visa cancellation, which will motivate him to remain abstinent and law-abiding.
Ms Liddy said the Applicant’s history suggests he is likely to relapse and reoffend. His recidivism risk, however, does not arise solely from drug use because he committed crimes during periods of abstinence. Ms Liddy submitted that the Applicant used drugs until the day of his recent arrest; and any abstinence since has not been tested in the community.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The risk of future harm to the Australian community if the Applicant repeats his offending encompasses serious physical, psychological, and financial harm. This includes if he was to again commit violence against strangers, or sexual offences in public places, or steal from others, or carry a weapon while affected by substances.
The Tribunal accepts the Applicant experienced difficulties at school because of his dyslexia and as a non-English speaker. It also accepts he may have experienced adverse emotional effects after relationships ended. None of these life events, however, excuse his persistent polysubstance abuse and criminal offending for over a decade. His claims about past immaturity do not persuasively explain his conduct until almost the age of 30.
The Tribunal accepts the Applicant’s crimes are mostly linked to persistent addiction, although some crimes were committed during periods of abstinence. Multiple past rehabilitative opportunities, including from his family, have either been eschewed or unsuccessful. The Tribunal adopts the Court’s finding at his most recent sentencing, that there have been no barriers to the Applicant’s rehabilitation, he has ‘simply chosen not to engage in treatment’.[74] The Applicant continues to have unmet rehabilitative needs requiring extensive case management, treatment, and other support. Decisions should not be delayed, however, for rehabilitation to be undertaken.[75]
[74] Exhibit R1, 30 [1]-[16].
[75] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) (‘the Direction’), cl 8.1.2(2)(b)(ii).
The Tribunal agrees with the Magistrate’s remarks during sentencing in October 2021, that the Applicant’s rehabilitative prospects are diminished by his history. The Applicant did not advance a persuasive narrative at the present hearing about why he would succeed with changing the course of his life if released. He is suggestible when it comes to drug use and tends to blame relapses on the influence of others. The Tribunal is concerned about his lack of recall for his sexual offending, including against a child; and about Dr Turnbull’s assessment that if he did relapse, ‘anything could happen’.[76] The Tribunal is also concerned about some of the Applicant’s claims regarding the context of his sexual offending, including that he did not normally take ‘ice and juice…it was only a handful of times’.[77] This is plainly inconsistent with his oral evidence at the hearing. The Tribunal is unpersuaded by the Applicant's assertion that an 18-month period of abstinence and self-reflection has meaningfully ameliorated his recidivism risk to an acceptable level. Even if he has avoided illicit drugs since being arrested in May 2021, this is a comparatively short period when regard is had for his decade-long polysubstance abuse and crimes.
[76] Exhibit R1, 30, [22]; Exhibit A5, 4.
[77] Exhibit R1, 66.
The Tribunal has considered supportive statements, including from the Applicant’s parents, sister, and Ms MJ. Only his parents gave oral evidence at the hearing. The Applicant’s reliance on support in the community, is tempered by the fact that comparable past supports have not assisted him in meaningfully changing the course of his life. The Tribunal remains concerned about the extent to which Ms MJ may be a mutually supportive and protective presence in his life. The evidence discloses she and the Applicant used heroin and other drugs throughout their relationship until his most recent imprisonment 18 months ago. Her statement, which was not prepared in the context of the Applicant’s visa cancellation, is almost a year old and there is no independent evidence to corroborate her claimed abstinence from illicit drugs, participation on the Methadone Program, status of multiple comorbidities, or the outcome of her ‘appointments’ with a ‘social worker and drug counsellor’.[78] Given the history of their relationship, the Tribunal is unwilling to accept uncorroborated assurances about the status of Ms MJ’s drug rehabilitation and capacity to be a supportive presence in the Applicant’s life.
[78] Exhibit A13.
The Tribunal accepts Ms Dhanji’s submission that visa cancellation is a new factor in the Applicant’s history. This factor, however, either alone or in combination with others, is an unpersuasive basis to reliably find his recidivism risk has been adequately reduced. That is because other compelling protective factors like rehabilitative opportunities, family support, the interests of his nieces, periods of employment, and success with MMA and bodybuilding, were insufficient motivators to change the course of his life.
The March 2020 LS/RNR is the most recent actuarial assessment available about the Applicant’s recidivism risk.[79] Coupled with Dr Turnbull’s report, and the evidence currently available at this hearing, the Tribunal finds there is a real likelihood the Applicant will reoffend, and that the risk of him doing so is at least moderate and unacceptable.
[79] Exhibit A6, 2.
The serious and escalating nature of the Applicant’s offending and other conduct, the potentially significant risk of harm from any repeat, and his moderate risk of reoffending, are such that this primary consideration weighs very substantially against revocation.
Tribunal consideration: Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian Government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of entering or remaining in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The Applicant does not contest that he has committed family violence offences.[80] He referred in his statement to a two-year relationship commencing in 2017, characterised by frequent arguments. He said on one occasion he was charged, convicted, and imprisoned for family violence offending.[81] The Tribunal notes convictions in 2018 for two counts of contravening a Family Violence Safety Notice, unlawful assault, and contravening a FVIO with the intention of causing harm or fear.[82] In closing submissions, Ms Dhanji highlighted the Applicant’s claim that he did not understand the FVIO was not lifted by his girlfriend at the time he resumed living with her, which was relevant to the seriousness of his conduct.
[80] Exhibit R1, 29 [23]; 80.
[81] Applicant’s Statement, 2 [11]-[12].
[82] Exhibit R1, 22.
Ms Liddy said there is no evidence the Applicant has completed any family violence programs and his evidence discloses ‘little insight’ into this offending. She said his conduct was not at a low level given it involved actual violence and criminal damage.
Tribunal findings: Family violence committed by the non-citizen
The Tribunal is satisfied the Applicant has been convicted of several offences constituting family violence. His conduct was serious enough for the court to impose a period of imprisonment, albeit for a few months, but cannot be considered family violence of the most serious kind. The Applicant is yet to engage in any rehabilitation for family violence but expresses a willingness to do so if released.
The Tribunal has some concerns about the Applicant’s claims relating to this category of offending. This includes blaming his former girlfriend for falsely telling him police lifted the FVIO, which he could have checked with police but did not. Moreover, the Applicant’s evidence is that he received several verbal warnings from police yet continued to engage in conflict with his former girlfriend that required police attendance. The Tribunal was left with the impression that the Applicant tried to minimise his family violence offending at times, including by claiming he did nothing wrong when removing his former girlfriend from his car during an argument. On another occasion, he claimed that if a neighbour had not falsely claimed he hit his former girlfriend, the Applicant would have been granted bail and not held on remand for so long. In any event, the Applicant’s pleas of guilty constitute admission to, and acceptance of, the relevant elements of these offences.[83] The resulting convictions and sentences are conclusive.[84]
[83] Maxwell v R (1996) 184 CLR 501, [19].
[84] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, 244-245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, 102.
On balance, however, this primary consideration carries no more than moderate weight against revocation.
Tribunal consideration: Best interests of minor children in Australia
Clause 8.3 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the 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;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant does not refer to any biological children in his evidence,[85] but instead invokes the interests of two nieces, who are his sister’s children. One of the children is five years old and the other is around eight months.[86] He states that he is in contact with the elder niece ‘at least once a week’ and used to take her to the park, beach, and babysit her on occasions. He has not met the younger child, who was born during his imprisonment. He aspires to watch his nieces grow up and contribute positively to their lives. Both the Applicant’s parents referred in their evidence to the Applicant having some role with his eldest niece and being a ‘caring uncle’.[87]
[85] Exhibit R1, 61-62.
[86] Ibid 63-64.
[87] Exhibit A2, 2 [13].
The Applicant’s sister, who did not give oral evidence, refers in her undated statement to the Applicant’s close relationship with her eldest child. She states the Applicant has not met her second child who was born in 2021. She says the Applicant is ‘looking forward to being an uncle to [the younger child] as well’.
Tribunal findings: Best interests of minor children in Australia affected by the decision
The Applicant has never physically met his youngest niece but has played with and babysat his eldest niece. The Tribunal is satisfied the Applicant loves his nieces despite relatively limited involvement in their lives. The children are too young to express a view about their best interests and the Tribunal is largely reliant on the claims of the Applicant’s parents and his sister, although the latter was not called to give oral evidence. There is no independent evidence about the effect of the Applicant’s separation from his nieces.
The evidence shows that the Applicant’s relationship with his nieces has been contextualised by long periods of absence and limited meaningful contact, including while in the thrall of his addictions, or committing offences, or being held in custodial settings. The relationship during much of the last two years has been largely by telephone and video calls. This could continue if the Applicant was repatriated, although admittedly a poor alternative to close physical contact. This would also deny the Applicant an opportunity to develop a more meaningful avuncular role with the children.
The Tribunal accepts the Applicant may be able to play a positive role in the lives of his nieces, in the 13 years and 17 years respectively before they reach adulthood. This is dependent on his ability to abstain from further illicit drug use and remain law-abiding. For the reasons previously adduced, the Tribunal is unpersuaded by his ability to do so. His eldest niece’s interests during the five years of her life have not motivated meaningful changes in the Applicant’s behaviour.
The evidence of the Applicant’s relatives about his relationship with the children is general; and his desire to play a more meaningful avuncular role is aspirational at best. The Tribunal accepts the Applicant’s sister and parents are unconcerned about him resuming a more prominent role in the children’s lives. The Tribunal remains concerned, however, regarding the Applicant’s claim he has no memory of his sexual offending, some of which was directed towards a child, because a cocktail of drugs made him ‘detached from reality’. In such circumstances, the Tribunal is cautious about the risk he might pose to other minor children.
The Tribunal is unable to distinguish between the children’s interests on present facts. The Applicant has not played, and there is no evidence to suggest he is expected to play, a prominent caregiver role in their lives, or that the children are in any way reliant on his care or support.

In closing submissions, Ms Dhanji confirmed the Applicant’s reliance on non-refoulement obligations because he is ‘Jewish and likely to be subjected to anti-Semitic behaviour’. She said authorities are only able to respond to anti-Semitic conduct ‘after the event’ and the US Department of State reports did not ‘reflect all acts or behaviours of anti-Semitism’. Ms Dhanji accepted the Applicant’s oral evidence is that he ‘doesn’t believe he’d be subjected to these behaviours or beliefs with any immediacy’, but said his mother was ‘more alive’ to anti-Semitic behaviour and beliefs in France. Ms Dhanji said the risk to the Applicant from anti-Semitism arose if he ‘tells people he’s Jewish or if people are of the belief he’s Jewish’. When asked how people might form this belief given the Applicant does not identify as a member of the Jewish faith, or display any outward sign of any religious affiliation, Ms Dhanji said she could not say how such a belief might be formed.
Ms Liddy said the Applicant’s non-refoulement claims were not raised in his revocation claims and he does not adhere to the Jewish faith. In such circumstances, others would only become aware of his Jewish heritage on his mother’s side if he told them. Ms Liddy said on current facts no real risk of harm from anti-Semitism is evident and the Applicant is entitled to apply for a protection visa to have his claims more comprehensively assessed.
Tribunal findings: International non-refoulement obligations
Based on the materials relied upon by the Applicant, the Tribunal finds his claims about personal risk in France from anti-Semitism to be speculative and unpersuasive. No meaningful reference was made to the contents of these Exhibits during the hearing. The media commentary in Exhibits A10 to A12 includes general references to anti-Semitic incidents in France, commentary about some Jewish people leaving France each year because of anti-Semitism, but a residual population of approximately 500,000 Jewish people continuing to reside in France.
The NGO report relied upon by the Applicant[110] is somewhat dated and not as current as the US Department of State reports, which refer to a reduction in anti-Semitic incidents in 2020 to 339, in a country of approximately 65 million people.[111] No submissions were made about the provenance or authoritativeness of the NGO report, which refers to surveys six to eight years ago in 2014 to 2016. The report states that ‘824 Jewish community sites are subject to protection by police security and military forces’, which tends to reinforce the view that French authorities respond to anti-Semitism or other threats.
[110] Exhibit A9.
[111] Exhibit R3, 31.
It remains unclear to the Tribunal on current evidence why the Applicant would be subjected to anti-Semitism in France. He does not identify as a member of the Jewish faith, and unless he publicised this connection on his mother’s side, it is difficult to understand why anti-Semites might form the belief he is Jewish and try to harm him. This is particularly so given neither the Applicant nor his mother have personally experienced anti-Semitic conduct, and they felt sufficiently safe to return to France multiple times since 2004. The references by the Applicant’s mother about her parent’s and brother’s experiences are uncorroborated hearsay. The evidence of the Applicant’s mother about reporting a ‘scary’ neighbour to police some time ago is similarly uncorroborated.
The Tribunal accepts there are people in France, as in other countries, who are racist and discriminate against others, or engage in religiously motivated crimes or other abuses. The persuasive weight of evidence, however, is that French laws and the European covenants to which France adheres, criminalise anti-Semitism or other interference with freedom of religion or hate crimes / speech. Penalties increase when acts of violence or defamation are committed because of a person’s ethnic group, nation, race, or religion. Given the examples cited earlier, the Tribunal is persuaded that effective state protection is available to the Applicant from French authorities if he was subjected to anti-Semitism.
The Applicant is eligible to apply for a Protection Visa, where his claims can be assessed in greater detail.[112] The appropriate course is to defer consideration of his claims should he wish to lodge an application.[113] Based on his very recent, general, and unpersuasive claims, however, the Tribunal does not accept he has a well-founded fear of persecution from anti-Semitism, or is exposed to a real risk of serious or significant harm if returned to France. This consideration carries neutral weight.
[112] The Direction cl 9.1(6).
[113] Plaintiff M1, [42].
Tribunal consideration: Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 30 years of age and lived in France until the age of 12. He subsequently lived in a household with his parents for several years, where French continued to be spoken. His evidence and that of his parents is that he continues to speak some French, which conflicts with the submission on his behalf in the ASFIC that he is ‘unable to communicate in French’.[114] The Tribunal prefers the oral claims. It is further submitted the Applicant would suffer considerable impediments if returned:[115]
72. There are substantial cultural, social and other barrier to Mr Sarian returning to France. He has no support network. Mr Sarian has no close family or friends in France. He is unfamiliar with the culture having spent more time living outside France than in that country. He would have to re-establish his life without the close support of his family and partner, and it is unlikely that he would have any meaningful contact with his family once he was returned. His entire immediate family and partner reside in Australia and would suffer significantly if he was returned to France.
73. Mr Sarian would suffer significant impediments in establishing himself and maintain basic living standards in France. Mr Sarian lack of qualifications and language skills would affect his ability to obtain employment. He would not have immediate access to social welfare or a public health system in France as he has not lived here for almost 20 years and had never worked there which is a requirement to access their social security system. The social welfare and public health system would be available to him in Australia.
74. Similarly, if Mr Sarian was to be returned to France, he would experience the barriers as set out above but also as a Jewish person he would be subjected to discrimination and persecution based on religious grounds.
[114] ASFIC, 14 [64].
[115] ASFIC, 15 [72-[74]].
The Tribunal does not accept that the Applicant has ‘no close family’ in France. He has maternal grandparents, aunts/uncles, and cousins who live there. He stated, however, that there is no one to rely on in France for accommodation or other practical support, and fears being homeless.[116] His oral evidence is that he has not directly requested this from relatives and only claims to have ‘read between the lines’ during telephone calls.
[116] Ibid 69.
The Applicant stated in his documentary and oral evidence that he has no diagnosed medical or psychological conditions and takes no prescription medication.[117]
[117] Exhibit R1, 68.
In her closing submissions, Ms Dhanji reinforced there were several impediments to the Applicant’s repatriation, including possible homelessness, isolation from ‘central support’ in Australia, lack of family or other social support in France, language and cultural unfamiliarity, difficulty completing forms, finding work, and accessing Government support.
Ms Liddy conceded that the Applicant will ‘face initial difficulties’ if removed but submitted that these can be overcome. She said he has no physical or mental health issues and his past employment roles were available in France. Ms Liddy said no direct enquiry was made with his family members in France about the availability of support, so the Applicant’s claims should be treated with caution. Moreover, new documents can be procured and although the Applicant may no longer be fluent in French, his background is such that this would improve if he spoke French daily.
Tribunal findings: Extent of impediments if removed
The available evidence reflects the Applicant’s relatively happy life in France with his family before coming to Australia, notwithstanding issues with dyslexia. His father has worked for almost 20 years for a company that has an international presence in France and Australia. The Applicant still has relatives in France and has returned with other family members for multiple visits. His mother has visited France in recent months. The Applicant has financial, practical and emotional support to draw on from his parents in Australia, and perhaps some emotional or practical support from family in France, if he asked directly rather than ‘reading between the lines’. The Tribunal accepts, however, there is no current evidence of any willingness by French relatives or his father’s close friend in France to provide him with assistance if returned.
The Applicant’s father stated he is ‘more than willing and able to support [the Applicant] personally and financially’ to live a better life. There is no evidence this support would be unavailable in France and may ameliorate some of the Applicant’s practical concerns.
There is no evidence the Applicant would be treated any differently to other French citizens if he needed medical, social, economic, rehabilitative, or other supports. There is no evidence about a lack of rehabilitative treatment for drug addiction in France or that this constitutes an impediment within the meaning of the Direction.[118] This is particularly so in circumstances where the Applicant has failed to take advantage of rehabilitative opportunities in Australia. There is also no evidence the Applicant would be unable to successfully re-apply for identity, travel or other documents given his French origins, or that his unfamiliarity with administrative processes cannot be overcome.
[118] GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 (Derrington J), [57]; [60]–[62].
Notwithstanding the Applicant’s youth and reported good health, the Tribunal accepts that after spending his teenage and adult years in Australia, re-establishing a life for himself in France would be somewhat difficult. This includes because of limited family or social links, persistent drug addiction, an extensive criminal record, and having spent the last 18 months in custodial settings. The Tribunal does not accept, however, there are substantial language or cultural impediments. Although he has lived in Australia since the age of 12, there is no evidence the cultural differences between France and Australia constitute a compelling impediment. On his own evidence, the Applicant speaks some French and could re-develop his language skills and cultural familiarity in time.
Although the Applicant has some work history and claims to have completed most of a baking apprenticeship and recent welding qualifications, his past circumstances may cause him to struggle to find work in France. Notwithstanding the support available from his parents in Australia, it is conceivable that repatriation may cause him practical and emotional hardship or trigger a relapse into drug abuse. On balance, this consideration carries moderate weight in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the 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.
Tribunal findings: Impact on victims
There are undoubtedly multiple victims of the Applicant’s persistent offending. There is no evidence, however, from any victim or their family members about the impact of a decision in this matter. This consideration is therefore not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cl 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, there is no evidence Australian business interests are enlivened within the meaning of the Direction. This aspect of the consideration therefore carries neutral weight.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia in 2004 when he was 12 years of age and is currently 30 years old. He completed high school to Year 10 before undertaking vocational training, including in baking, and welding. He has undertaken intermittent work.[119]
[119] Exhibit R1, 67.
The Applicant’s parents live in Australia and are permanent residents. He claims that his sister is an Australian citizen and continues to reside in Australia with her partner and children. The Applicant also claims to have been in a relationship with Ms MJ since August 2018[120] and says they plan to marry and ‘have been trying for a child for about a year now’. That latter claim is difficult to reconcile with the dated nature of Ms MJ’s letter and the fact the Applicant has been in custodial settings for 18 months. The Applicant stated Ms MJ would be very distressed if he was removed from Australia because they would not be able to start a family and he could not help her with rent and other living expenses. There is no evidence to corroborate the extent to which Ms MJ is financially reliant on the Applicant.
[120] Ibid 59-60.
In closing submissions, Ms Dhanji highlighted the higher level of tolerance that would be afforded to the Applicant because of his long residence in Australia. She noted that all his close family is in Australia, with whom he has developed ties of a ‘deeply personal nature’.
Ms Liddy agreed that the Applicant’s removal to France would impact emotionally on his family members. She said he has only made a limited positive contribution, which contrasts starkly with his prolonged offending and other misconduct.
Tribunal findings: The strength, nature, and duration of ties to Australia
The Applicant has lived in Australia for 18 years, which encompasses all his adult life. The Tribunal accepts he may be afforded a higher level of tolerance because of his long residence in Australia,[121] but the persistent nature of his addiction and crimes, and unwillingness to engage with rehabilitative opportunities, has exhausted any tolerance.
[121] The Direction cl 5.2(4).
The Applicant’s immediate family members in Australia are his parents, a sister, and two nieces, all of whom the Tribunal accepts have a permanent right to remain in Australia. The Tribunal accepts the Applicant has a close and loving relationship with his family members, who have stood by him during years of addiction and offending, and stand ready to provide him with continuing emotional, financial, and practical support. Although his parents, sibling and nieces may be able to visit him in France, the likely permanence of his exclusion from Australia in the event of non-revocation, would adversely affect his closest family and other personal relationships. This would cause his family members in Australia significant emotional hardship. Contact via telephone, social networking, or potentially infrequent visits is a poor substitute.
The Applicant referred to his father suffering Parkinson’s Disease and wants to be able to support him in Australia as the illness worsens. The basis of this claim remains unclear in the absence of expert evidence, and his father’s claim that he continues to be employed with a multinational company in a professional role. His father did not raise any illness or reliance on the Applicant in his oral evidence.
There is no evidence that Ms MJ is reliant on the Applicant for financial or practical support, and this claim was not meaningfully advanced during the hearing. At one stage of his oral evidence, the Applicant stated Ms MJ could appear as a witness, but Ms Dhanji confirmed after taking instructions that Ms MJ would not be called. The Applicant’s evidence is that Ms MJ lives in public housing, receives a Disability Support Pension, and undertakes study. He believes Ms MJ no longer uses heroin or other drugs because this is what she told him. He intends personally confirming this if released and will immediately end their relationship if her abstinence claim is untrue. In the absence of a more recent statement from Ms MJ, and an opportunity to question her on the current nature of her relationship with the Applicant, the Tribunal is unpersuaded the effect on Ms MJ is other than emotional.
The Applicant claimed to have been employed between 2008 and 2011, and between 2017 and 2020. There is no evidence, however, to corroborate this. His employment appears more sporadic given prolonged addictions, periods of imprisonment, and other periods of conditional liberty. There is scant evidence of the Applicant’s positive contribution. The Tribunal accepts, however, that he has undertaken some intermittent work and paid some taxes, which attracts some weight. For much of his stay, however, the Applicant has been a persistent burden on the public purse. For someone who has spent so long in Australia, the strength of the Applicant’s ties is comparatively limited.
The totality of the evidence is that what relationships the Applicant has are predominantly in Australia. Notwithstanding the negative aspects of his case, this consideration weighs substantially in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties; and the Tribunal has not identified any others under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION

Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. The Tribunal sees no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The totality of the Applicant’s offending and other misconduct is very serious and reflects a persistent disrespect for Australia’s law enforcement framework. He has repeatedly breached his obligation to obey Australian laws and there is an unacceptable risk he may do so again. Serious character concerns are raised by some offending and the Australian community would expect, as a norm, that the Government would not allow him to remain in Australia, and that he should expect to forfeit the privilege of remaining here.
Despite multiple rehabilitative opportunities, including from the courts and his own family, the Applicant has consistently failed to meaningfully change the course of his life. Although his circumstances are such that he would be afforded a higher level of tolerance by virtue of having lived in Australia since the age or 12, any additional tolerance must be considered in the context of more than a decade of chronic polysubstance addiction and crimes.
The Tribunal is satisfied the Applicant loves his nieces but his involvement with them is relatively limited and contextualised by long periods of absence and limited meaningful contact. His ability to play a more positive avuncular role is conditional on him remaining abstinent and law-abiding. For the reasons previously adduced, the Tribunal is unpersuaded by his ability to do so. The Tribunal also remains concerned by the Applicant’s inability to recall his sexual offending, some of which was directed towards a child, because a cocktail of drugs made him ‘detached from reality’. The Tribunal is cautious about the risk he might pose to other minor children should he again relapse into drug use.
Based on his recent, general, and unpersuasive claims, the Tribunal does not accept the Applicant has a well-founded fear of persecution from anti-Semitism in France or that he would be exposed to a real risk of serious or significant harm if returned. He is eligible to apply for a protection visa, which would enable his claims to be assessed in greater detail
While there are practical and emotional impediments to the Applicant re-establishing himself in France, these are not insurmountable. There would understandably be a period of re-adaptation, including because of separation from his main sources of financial, practical, and emotional support in Australia. There is no evidence, however, that his family’s support could not continue, or that they could not visit him in France. That said, the likely permanence of his exclusion from Australia would likely cause significant emotional hardship to his parents, sibling, and perhaps to Ms MJ.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community considerably outweigh the combined weight to be given to the primary consideration Best interests of children, and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for decision of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 14 November 2022

Dates of hearing: 2 and 3 November 2022

Advocate for the Applicant:
Ms Sheanna Dhanji

Solicitors for the Applicant: Southport Community Legal Service

Advocate for the Respondent: Ms Samantha Liddy

Solicitors for the Respondent: Sparke Helmore Lawyers

[2022] AATA 3808

14 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Dates of hearing:	2 and 3 November 2022
Advocate for the Applicant:	Ms Sheanna Dhanji
Solicitors for the Applicant:	Southport Community Legal Service
Advocate for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers