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

Saruhanyan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3070 (16 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5532
Re:Karen Saruhanyan
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date:16 September 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Uzbekistan – Class BC Subclass 100 Spouse visa – failure to pass good character test – substantial criminal record – lengthy offending – drug addictions – 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)
CASES
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56
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
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Murphy v Minister for Home Affairs [2018] FCA 1924
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
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
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
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YKSB v Minister for Home Affairs [2020] FCAFC 224
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, “Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
16 September 2022
INTRODUCTION

The Applicant, Mr Karen Saruhanyan, has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class BC Subclass 100 Spouse visa (“the visa”).
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 43-year-old citizen of Uzbekistan.[1] He is of Armenian ancestry and Christian religion. In his documentary evidence, he claimed to have arrived in Australia on 6 October 2000 as a member of the Uzbekistan team for the Sydney Olympics.[2] He has relatives still living in Uzbekistan[3] and claimed to have two siblings living in the United States and Russia respectively.[4]
[1] Exhibit R1, 81.
[2] Ibid 48; 78; 121; 123; Exhibit R2, 383.
[3] Ibid 89.
[4] Ibid 89; 105.
On 14 November 2000, the Applicant applied for a Protection Visa. This was refused because he was found not to engage Australia’s protection obligations.[5] The Applicant returned to Uzbekistan in 2001.
[5] Ibid 32 [82].
While in Australia, the Applicant met a woman who became his wife.[6] The Tribunal will refer to her as “Ms AA”.[7] Ms AA was born overseas but is an Australian citizen.[8] She sponsored the Applicant’s re-entry into Australia under a spouse visa[9] and they subsequently had a child together who is now almost 17 years old.[10] The Tribunal will refer to the child as “BB”.
[6] Ibid 121; 253.
[7] Ibid 48; 84; 128.
[8] Ibid 216.
[9] Exhibit R2, 382.
[10] Exhibit R1, 85.
While living in Australia, the Applicant has worked in a factory, as a plasterer, and several other roles.[11] He has also completed vocational qualifications.[12]
[11] Ibid 91.
[12] Ibid 156-161.
A Criminal History Check discloses that the Applicant has not been law-abiding since arriving in Australia,[13] with concerns previously raised by immigration authorities about whether he should be allowed to remain. This history is summarised as follows:
[13] Ibid 38.
(a)14 September 2004: The Applicant was granted the visa cancelled in this matter.[14]
[14] Ibid 254.
(b)28 September 2007: The Applicant was convicted of two charges of Theft-From Shop (Shopsteal) and fined an aggregate of $2500.00.
(c)14 December 2007: The Applicant was found guilty of one charge of Theft-From Shop (Shopsteal). No conviction was recorded and a fine of $200.00 imposed.
(d)12 June 2008: The Applicant was convicted of one charge of Go equipped to steal/cheat, one charge of Theft, one charge of W/o Auth/Excuse Enter Private Place and one charge of Burglary. An aggregate sentence of six months’ imprisonment, wholly suspended, was imposed.
(e)9 December 2008: The Applicant was convicted of Burglary and Theft, and sentenced to an aggregate two months’ imprisonment, wholly suspended.
(f)11 February 2010: The Applicant was convicted of 14 charges of Theft and 15 charges of Burglary, for which he received a total sentence of three years and six months’ imprisonment.
(g)19 March 2010: The Applicant was convicted of Drive whilst disqualified and sentenced to three months’ imprisonment. He has an extensive history of driving-related infractions and it is uncontested he never held an Australian licence.
(h)12 January 2011: The Department notified the Applicant his visa could be liable for cancellation on character grounds.[15] On 25 March 2011, the Applicant was notified of the decision not to cancel the visa, but received the following warning:
[15] Ibid 73.
Please note: this decision does not mean that your case cannot be considered again under s501 in the event of further criminal offending by you.
(i)28 August 2014: The Applicant was convicted of State false name when requested and fined $750. He was also convicted of four charges of Burglary and four charges of Theft, receiving an aggregate sentence of 18 months’ imprisonment, partially suspended.
(j)10 July 2015: The Applicant was convicted of Deal property suspected proceed of crime, Go equipped to steal/cheat, and Attempted burglary, for which a community corrections order was imposed. A charge of Contravene suspended sentence order regarding the 28 August 2014 offences was also proven, and the suspended sentence wholly restored, with a term of 10 months’ imprisonment to be served.
(k)11 February 2016: The Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (“the Act”).[16] He was invited to make representations about revoking this decision, which he did within the permissible period.
[16] Ibid 71.
(l)29 April 2016: The cancellation of the Applicant’s visa was revoked, but he was again warned in the following terms:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.
(m)25 May 2020: The Applicant continued to reoffend and was convicted of Burglary and Theft, for which an aggregate of 120 days’ imprisonment was imposed.
(n)20 October 2020: The Applicant was convicted of Common law assault, Hold out to be a police officer, Commit indictable offence whilst on bail, and Home invasion (steal)-person present. A total sentence of three years’ imprisonment was imposed. The Court described the Applicant’s home invasion as ‘a serious example of this offence’[17] and considered his rehabilitation prospects were ‘at best, guarded’.[18]
(o)17 November 2020
: The Applicant’s visa was again mandatorily cancelled under

s 501(3A) of the Act.[19] He was invited to make representations about revoking this decision, which he did within the permissible period.[20]
(p)1 July 2022: The Respondent decided not to revoke the cancellation decision (“non-revocation decision”)[21] and notified the Applicant on the same day.[22]
(q)6 July 2022: The Applicant sought review of the non-revocation decision.[23]
[17] Ibid 45.
[18] Ibid 51.
[19] Ibid 254-260.
[20] Ibid 76-79.
[21] Ibid 7-8; 21.
[22] Ibid 8; 12.
[23] Ibid 4-11.
This application was heard in-person at the Tribunal’s Melbourne Registry over three days (7, 8 and 9 September 2022). The Applicant was represented by Mr Sam Issa, a solicitor from Firmstone and Associates. The Applicant speaks very little English and was assisted by an interpreter in the Russian language. The Respondent was represented by Mr Peter Turner of Minter Ellison.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision.[24] If this does not occur, the decision is affirmed by operation of law. These reasons are provided five working days after the hearing ended and within the permissible 84-day period.
[24] Section 500(6L) of the Act.
ISSUE FOR DETERMINATION
The Applicant’s failure of the character test arises as a matter of law.[25] He fails the character test by virtue of being sentenced to a three-year term of imprisonment on 20 October 2020. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[26] The Tribunal “stands in the shoes of the original decision-maker” but considers the available evidence at the time of its decision.[27]
[25] Applicant’s Statement of Facts, Issues and Contentions dated 15 August 2022 (“ASFIC”) 4 [31].
[26] 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).
[27] 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].
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 has reflected with approval upon the approach taken in Viane[28] to determine the existence of ‘another reason’. Their Honours summarised the following principles at [27] as relevant to this statutory task:
(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.
[28] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
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.
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).[29]
[29] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[30]
[30] 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.[31]
EVIDENCE
[31] 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”), the Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”)[32] and Applicant’s Submissions in Reply dated 1 September 2022. The following documents were tendered into evidence:
[32] Respondent’s Statement of Facts, Issues, and Contentions (“RSFIC”) dated 31 August 2022.
(a)G-Documents numbering 283 pages;[33]
[33] Exhibit R1. G documents are so named because they are provided under s 501G of the Migration Act. 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 383 pages;[34]
[34] Exhibit R2.
(c)Smartraveller.gov.au update on Uzbekistan dated 22 July 2022;[35]
[35] Exhibit A1.
(d)Online news article from Aljazeera dated 6 May 2015 titled ‘Uzbekistan’s long-persecuted Bukhara Jews’;[36]
[36] Exhibit A2.
(e)Undated online article from an unknown website titled ‘Religious Persecution in Uzbekistan’;[37]
[37] Exhibit A3.
(f)Online article dated August 2020 titled: “The World Bank in Uzbekistan”;[38]
[38] Exhibit A4.
(g)Online article dated March 2014 from the European Monitoring Centre for Drugs and Drug Addiction titled “Overview of the drug situation in Uzbekistan (2014)”;[39]
[39] Exhibit A5.
(h)Online article dated 24 June 2013 titled ‘Violations of Religious Freedom Widespread in Uzbekistan’;[40]
(i)Statement of Mr John Collins dated 7 February 2022 and Employment Contract between the Applicant and RacehorsesNZ dated 1 February 2022;[41]
(j)Report of counsellor Ms Amanda Brown dated 10 August 2022, with accompanying email of instruction and expert witness declaration dated 29 August 2022;[42]
(k)Online article from Amnesty International titled “Uzbekistan 2021”;[43]
(l)Online undated article from “Facts and Details” titled “Cannabis and Illegal Drugs in Uzbekistan”;[44]
(m)Online article dated 29 September 2009 titled “EU helped to refurbish rehabilitation Centre for drug addicts in Uzbekistan”;[45]
(n)Research Paper by the Council of Europe dated December 2014 titled: “Uzbekistan: Drug Situation and Drug Policy”;[46]
(o)Article by Embassy of Uzbekistan titled: “Analysis of Drug Situation in Uzbekistan for 2014”;[47]
(p)Article from the United Nations Office on Drugs and Crime dated 2022 titled: “Promoting and broadening horizons of UNODC drug prevention methodologies for working with adolescents, youth and families in Uzbekistan”.[48]
Applicant’s evidence
[40] Exhibit A6.
[41] Exhibit A7.
[42] Exhibit A8.
[43] Exhibit A9.
[44] Exhibit A10.
[45] Exhibit T1.
[46] Exhibit T2.
[47] Exhibit T3.
[48] Exhibit T4.
Life in Uzbekistan

The Applicant adopted two statements as true and correct.[49] He is a citizen of Uzbekistan and a Christian of Armenian ethnicity. He grew up and was educated in Uzbekistan to Year 11, then claimed to have undertaken a “TAFE course” as a dental technician, while concurrently helping his aunt look after horses on her farm and becoming an elite athlete. The Applicant stated in oral evidence he was unable to find work in Uzbekistan because of his ethnicity and religion, which conflicts with previous submissions from his barrister during criminal proceedings that he worked in Uzbekistan prior to coming to Australia.[50]
[49] Exhibit R1, 144-146.
[50] Ibid 128 [2000 (21)].
The Applicant has stated in documentary evidence,[51] to the Court,[52] and initially in oral evidence, that he was an Uzbek Olympic representative at the Sydney Olympics. During cross-examination, however, after claiming to have been an Olympic representative in “Thai boxing”, it was put to the Applicant this has never been formally recognised as an Olympic sport. the Applicant subsequently conceded he was not an Olympian but instead represented Uzbekistan in an international Thai boxing event in Melbourne around the same time as the Sydney Olympics. There is no corroboration for either claim.
[51] Ibid 48 [35]; 123 [2.3].
[52] Ibid 121 [1.2].
The Applicant said he applied for a Protection Visa soon after arriving in Australia, which was refused. He returned to Uzbekistan and Ms AA joined him there for a time. She also joined him on another visit to Uzbekistan in 2005. The Applicant claimed that one of his brothers lives in the United States and another relocated to Russia. The evidence about how many siblings he has is inconsistent. There are multiple references in evidence to him only having one brother, including from the Applicant himself and his previous barrister.[53] The Applicant claimed the only relatives he currently has in Uzbekistan are a paternal grandmother who is 94, an aunt who looks after his grandmother, and a cousin.
[53] Ibid 49 [36]; 89, 121 [1.5],127; 129.
Life in Australia
The Applicant lived in Uzbekistan for about a year after his Protection Visa application was refused. Ms AA successfully sponsored his re-entry to Australia under a spouse visa. He referred to intermittent work in Australia on a factory production line, as a landscaper, cleaner, stable hand, plasterer, in general construction, as a fitness trainer, and other roles. He said that because of his addiction to heroin and later methamphetamine, his work history was in the nature of: “get a job, lose a job”. The Applicant agreed he possesses many vocational skills that have been enhanced through completion of courses.[54]
[54] Ibid 156-161.
When asked about positive contributions while living in Australia, the Applicant said he paid taxes while working and involved himself with Ms AA in their faith and ethnic communities. He used to take BB to play soccer, said he donated clothes to a church, and claimed to have “saved a girl” from drowning at the beach.
Addictions, offending, and other conduct
The Applicant was taken through his criminal history in detail and eventually agreed it was an accurate record. When asked about the sentencing remarks, however, he claimed not to have previously seen them. He agreed the materials in evidence disclosed frequent offending since 2007 that was serious in nature.
The Applicant said the root cause of his crimes was persistent drug addiction since 2007, which is when he separated from Ms AA. He also claimed to have taken drugs because his parents-in-law “put pressure on [him]”. When asked how he supported himself during his persistent addiction, the Applicant responded: “I had to do burglaries”. When asked about Centrelink benefits, the Applicant said this was “on and off” because he missed appointments, causing payments to be cancelled. He said that his addiction to heroin by 2007 was severe and he was unable to hold down a job. The Applicant agreed there were few occasions since 2007 where he has either not been imprisoned or subjected to some form of conditional liberty. When asked about the years referred to in his statement where he lived “a good and lawful life” with Ms AA and BB, the Applicant thought he only had one theft conviction in 2016 or 2017.
The Applicant claimed he gained control of his heroin addiction through Naltrexone implants,[55] which he found “very helpful” for about six months but said “you have to be in the right environment” for this therapy to succeed. He blamed a friend who promised to remain abstinent with him but did not follow through. The Applicant said: “two relapses were because of [this friend]”. The Applicant said while his heroin addiction was eventually controlled by this opiate replacement program, he became addicted to methamphetamine (“ice”). He was under the influence of ice during the home invasion and agreed these were his most serious crimes. The Applicant claimed the victims of this offending owed other people money, and he “just went to help” recover it. When asked about trying to diminish his culpability, the Applicant said: “no – it’s wrong, but I did a deal in court. I didn’t do anything to anybody – nobody got hurt. I haven’t touched anyone”. The Applicant’s evidence was that his barrister counselled him to accept the “good deal” offered, even though he disagreed with the facts on which his guilty plea was based. He denied, for example, the judge’s finding that he punched one victim in the stomach during this home invasion.
[55] Ibid 147.
The Applicant accepted that despite there being no drug convictions in his criminal history, he has persistently consumed illicit drugs like heroin since 2007. He also agreed that he committed multiple driving offences in Australia, including driving while affected by drugs, failing to stop after accidents, exceeding the alcohol limit, driving unlicenced, driving while disqualified, and failing to exchange details.[56] This was despite having never holding an Australian driver’s licence.[57] The Applicant explained this was because of his inability to produce the requisite standard of identification. The Applicant agreed his driving record was serious, including because he drove “while under the influence of drugs” like heroin and methamphetamine. He said several driving offences that preceded his drug addiction were because he was “young and stupid”.
[56] Exhibit R2, 160.
[57] Ibid 167.
The Applicant was asked about references in evidence to intervention orders (“IVOs”) being taken out against him.[58] He agreed these were taken out by Ms AA. He could not recall how long the IVOs were in place and claimed Ms AA’s parents “forced her to do that.” When asked why, he said it was because of their disapproval of him, including because of his heroin addiction and offending. When asked what was alleged to justify the IVOs, the Applicant said: “When applying for bail the judge said I was hitting her for five years”. He denied doing so.
[58] Ibid 204; 210; 332 [15].
Previous warnings
The Applicant agreed he received formal warnings from immigration authorities in 2011 and 2016 about his offending but continued to reoffend after each warning.[59] He claimed to have done “everything possible to stop drug use,” including several courses of formal rehabilitation but persistently relapsed and reoffended.
[59] Exhibit R1, 71; 75.
Conduct while imprisoned
The Applicant said he was on the Methadone Program for a time while imprisoned[60] and then transitioned to monthly Naltrexone injections. He claimed the last time he took illicit drugs was in 2019, “two months before committing the offences” that he was most recently imprisoned for. When challenged that records disclose he tested positive to drugs twice while imprisoned, including for buprenorphine,[61] and was caught retrieving an item thrown over a fence containing buprenorphine,[62] the Applicant agreed this was the case. He claimed the package he retrieved was tobacco for onforwarding to someone else. When asked by Mr Turner if he wanted to change his evidence about the last time he consumed illicit drugs, the Applicant responded: “No”.
[60] Ibid 92.
[61] Exhibit R2, 81; 247.
[62] Exhibit R2, 102.
When asked about a prison record stating he was caught with a rubber glove containing urine,[63] the Applicant claimed it was his own urine, which he retained to be able to provide a clean test at a later stage. When asked about being found with white powder secreted in a sock,[64] the Applicant claimed this was a sleeping pill given to him by another prisoner, because he was unable to get required treatment from the prison system. When asked about a report that he used abusive language against a prison officer,[65] the Applicant denied doing so. When asked about another incident where he reportedly swore at and abused guards,[66] the Applicant agreed he said, “something to this effect”. When asked about reports that he refused and struggled to provide urine samples, the Applicant claimed he “still has problems” with the latter and was falsely accused of refusing to provide tests, including on one occasion when he had a “stomach ache”. When asked about a report about a bottle of urine being found in his cell,[67] the Applicant claimed it was “Sunflower Oil to add to a salad” and the female prison officer refused to smell it and confirm this. The Applicant agreed there was an occasion when he was found guilty of consuming illicit alcohol, claiming this was accidental after mistaking the illicit alcohol for orange juice.[68] When asked if he considered the records about his conduct while imprisoned accurate, the Applicant responded: “No”. When asked if he read submissions by his lawyer that “there is no evidence…the Applicant has any compliance or behavioural issues in prison,”[69] the Applicant responded: “Some instances it was my fault, others were not my fault”. The Applicant accepted the evidence reflects some non-compliance and behavioural issues by him while imprisoned.
[63] Ibid 24-25.
[64] Exhibit R2, 23.
[65] Ibid 24.
[66] Ibid 25 [29 June 2019].
[67] Ibid 28 [2 October 2019].
[68] Ibid 38.
[69] ASFIC, 11 [68].
When asked about his alleged involvement in an assault while imprisoned and being “deemed unsafe”,[70] the Applicant recalled he was blamed for the assault against an “Indian guy” and could not remember being deemed unsafe. He said the purported victim “didn’t have any injuries”. The Applicant said that except for sporting contests as a boxer, he has “never beaten anyone up in [his] life”. When asked about sentencing remarks stating he punched a victim in the stomach during a home invasion,[71] the Applicant claimed he only pushed the victim, and the judge’s reference to a punch was because of a “deal” the Applicant’s barrister made with the prosecution.
[70] Ibid 28-29.
[71] Exhibit R1, 42.
Remorse and risk
The Applicant said he feels ashamed of his persistent offending and acknowledged that Australian authorities had given him “a lot of chances”. He requested “one last chance” to show he can remain abstinent from drugs and live a law-abiding life.
The Applicant disagreed with the Court’s judgement that he constitutes a “medium risk of reoffending”[72] because that assessment was two years ago, and he has changed since. He stated: “at the moment I’m almost sure I’m not going back to drugs” and claimed that despite the ready availability of drugs in custody, he had “said no”.
[72] Ibid 51 [49]
Rehabilitation and protective factors
The Applicant disagreed with the Court’s assessment that his prospects of rehabilitation are guarded.[73] He agreed, however, that he previously told prison authorities he did not need to do an AOD (Alcohol and Other Drugs) program, that he was adamant he would not do a violence program, and that he would instead not apply for parole, serve his entire sentence, and did not have to complete any programs.[74]
[73] Ibid 46 [22].
[74] Ibid 91.
The Applicant said counsellor Ms Amanda Brown told him she would provide counselling services and “heroin tests” to confirm his abstinence if released. He said Ms AA would “take him anywhere [he] needs to go”. Others like Mr Collins and two friends would also help him “in any situation”. The Applicant said Ms AA’s and BB’s interests were strong motivators for him to remain abstinent from drugs and law abiding.
In terms of work, the Applicant referred to a contract with RacehorsesNZ signed in February 2022. He said the company is owned and operated by Mr John Collins and Ms Melissa Robinson. Under the terms of their contract, he will be appointed as Operations Manager of RacehorsesNZ and live at a property leased by the company in rural Victoria. His salary under the contract is $150,000 per year. When asked what his duties entail, the Applicant said looking after horses, taking them for walks, and cleaning stables. When challenged that this was a stable hand’s job rather than an Operations Manager role, the Applicant said he is experienced with horses after working on his aunt’s farm in Uzbekistan. When asked about his previous claim that he did not work in Uzbekistan, the Applicant said he only helped his aunt during summer holidays with two horses she owned. The Applicant did not know how many staff RacehorsesNZ has or other details about the business, but said he was confident he could look after horses.
The Applicant said he has known Mr Collins “since 2013” and RacehorsesNZ are aware of his offending. He considers the salary offered will allow him to live comfortably and diminish his risk of committing further dishonesty offences. The Applicant was unaware that the proposed work location specified in his employment contract was approximately 60 to 90 minutes’ driving time away from Melbourne. When asked whether Ms AA and BB would live with him there, the Applicant claimed they would. This was later contradicted by Ms AA. When asked who would drive him to and from Melbourne given that he has no licence, the Applicant said Ms AA, or a friend, or BB would. When asked how the special drug testing and other rehabilitation terms in the contract would be monitored, the Applicant said this would be done by Alcohol and Other Drugs (“AOD”) counsellor Ms Brown. The Applicant discussed aspects of his hour-long consultation with Ms Brown, which he said was conducted in English.
When asked about a 2020 offer from Ms AA’s mother and stepfather to work in their building company, the Applicant responded: “No…I don’t want to work in that business”. The Applicant said he never previously had the combination of an offer of stable employment, counselling, and support from his family and friends, which he thought would enable him to remain abstinent from drugs and law-abiding. The Applicant agreed, however, that he lived with Ms AA and BB at the time of his most recent offending, but their support was insufficient motivation to prevent his recidivism. He said the difference now is that BB is almost an adult and it would be “harder to hide” any further drug taking or offending.
Relationship with Ms AA
The Applicant said Ms AA’s family are observant Jews and disapproved of his marriage to Ms AA because he is not Jewish.[75] He said their persistent opposition caused problems and made him feel “upset and disappointed”. After their son was born in 2006, the Applicant said their separation and subsequent divorce in 2008 was at the insistence of Ms AA’s parents. When asked why Ms AA’s parents felt this way, the Applicant said it was because he was frequently “locked up” and addicted to heroin. He recalled resuming a life together with Ms AA in or about 2011 and said she also became addicted to heroin for a time.[76] The Applicant claimed his father-in-law eventually accepted him into the family before passing away. He also claimed Ms AA told her mother if she did not accept the Applicant, she would sever contact with the family. There is no evidence from the Applicant’s parents-in-law to corroborate these claims. When asked if he agrees that his mother-in-law only tolerates him because of Ms AA’s threat, the Applicant responded: “I don’t know. I can’t read what my mother-in-law is thinking.” He said that he had not seen his mother-in-law for a long time.
[75] Exhibit R1, 122 [1.7]; 128.
[76] Ibid 63 [32].
The Applicant was asked about sentencing remarks in 2010 where Ms AA was found to be his co-offender in some dishonesty offences.[77] He claimed she was forced to plead guilty under a “deal” and, although she drove him to some burglary locations, she did not know what was happening. When challenged, the Applicant responded: “It happened 12 years ago. I pleaded guilty. What she said I don’t know”. When asked if Ms AA followed his lead as the Court found, the Applicant responded: “we were in the same car”.
[77] Ibid 55.
The Applicant said Ms AA’s health is “very bad”, which included problems with the “bone structure of all her bones”. He agreed she is “emotionally fragile”[78] because “everything is on her shoulders” and she only manages “with a lot of difficulty”. He said Ms AA had not visited him in custodial settings because of her comorbidities, but they communicate frequently by telephone, up to two or three times each day. He said Ms AA made him “swear on [BB’s] health this would be the last time” he takes drugs.
[78] Ibid 84.
The Applicant said Ms AA could not accompany him to Uzbekistan if he was removed because it is a Muslim country, and she is Jewish. When asked if she experienced problems during her previous visits to Uzbekistan, the Applicant said they were able to avoid this by not going anywhere, including because of the heat and Ms AA’s asthma.
Relationship with BB
The Applicant frequently invoked the interests of BB, stating he was not only the child’s father but a friend. He claimed BB’s interests are a compelling protective factor ameliorating his future risk of relapse and recidivism. He said BB had not visited him during his imprisonment, is unaware of his offending or drug addictions, and instead believes the Applicant’s confinement in recent years is because of a poor driving record. The Applicant said he remains in contact with BB by telephone and videocalls. The Applicant said it would be impossible to hide any further relapse or offending from BB who is almost an adult, and this is the “biggest reason” he will not relapse or reoffend. He said BB’s biggest dream was to introduce the Applicant to his girlfriend and friends. He said BB could not come and live with him in Uzbekistan because of his Jewish faith. BB also has an established life in Australia and is approaching his final year of high school.
Non-refoulement claims
The Applicant claimed he personally experienced discrimination at school in Uzbekistan because the Muslim majority were trying to “squeeze out anyone who was not a Muslim”. He said that by 1991 “there were only 1 percent of people left [in Uzbekistan] who were Christian”. When asked what the source of this information was, the Applicant responded: “What my aunty tells me”. The Applicant agreed that on his own evidence the Government of Uzbekistan selected him to represent their nation in a World Thai Boxing Championship in Melbourne in 2000 and paid his way. He also agreed that he returned to Uzbekistan when his Protection Visa application was rejected, lived there in 2002-2003 without coming to any harm, and travelled to Uzbekistan again a few years later with Ms AA.
The Applicant claimed his father was murdered sometime “between 2000 and 2001”. He attributed this to his father’s Christianity and because the murderer purportedly owed his family money. He fears this person will also kill him, which is the reason he applied for refugee status in 2000. When asked about the basis of this fear, the Applicant said his mother and younger brother attended court for the murderer’s trial and his then 13-year-old brother[79] purportedly told him the murderer threatened to kill their entire family. The Applicant agreed he had only seen this person once in 2002 after returning to Uzbekistan, although it remains unclear, despite the Applicant’s explanation, how he was able to encounter the murderer who by that time had been tried and imprisoned. The Applicant agreed he has not seen or had any contact with the murderer in the 20 years since.
[79] Ibid 128 [2001].

The Applicant said it was not safe for him to return to Uzbekistan because there was a coup d’état there two months ago during which 200 people died. He claimed a friend in Uzbekistan told him that every year the situation was “getting worse and worse and worse from a nationality point of view and ethnicity”. No evidence was provided to corroborate the coup claim, nor was a statement provided from the source of this information.
Eligibility for Armenian citizenship?
The Applicant was asked about his possible eligibility for Armenian citizenship by descent (jus sanguinis), given his claim that both his grandparents were born there. The Applicant said he never enquired about this. He recalled that one close relative who moved to Russia years ago may have become a Russian citizen.
Ability to reintegrate in Uzbekistan
The Applicant said he has no savings, but Ms AA inherited funds and an apartment from her father’s estate. His evidence and that of Ms AA is that her money is his money. Ms AA later estimated her assets at approximately $1m in property and other funds.
The Applicant claimed no one could help him re-establish himself in Uzbekistan. When asked about the relatives and friends referred to in his evidence, the Applicant said his grandmother is 94, his aunt looks after his grandmother, and a close friend he referred to is Muslim. He claimed he could not find a job as a Christian of Armenian origin and was also impeded by not being able to speak Uzbek, which became the official language after the end of the Soviet Union in 1991. He claimed there were “only one or two schools in Russian left”. When challenged, the Applicant conceded that Uzbek, Russian, and Tajik continued to be widely spoken in Uzbekistan.
The Applicant said he needs continuing drug treatment and has other unmet rehabilitation needs, which he could not get treatment for in Uzbekistan. He also claimed he could not find work to support himself. In relation to the former he said drug rehabilitation treatment in a Muslim country like Uzbekistan is “haram”[80] and he would only receive punishment. He said the pain of drug withdrawal may cause him to go “back to drugs”. The Applicant said he did not think public drug services were available, only private, which he could not afford because of an inability to work. He said the situation in Uzbekistan was such that he would be effectively prevented from seeking help. The Applicant said he could not seek employment with a Christian employer because they are few in number and “tax authorities” in Uzbekistan “either close them or put taxes up so they can’t survive”. When asked what the source of his knowledge is about the availability of drug rehabilitation and work in Uzbekistan, the Applicant said it is his aunt and a friend. He agreed there was no statement from either and he had not personally been to Uzbekistan since 2005. When asked about Exhibits T1 to T4, which suggested drug rehabilitation services were available in Uzbekistan, the Applicant responded: “I’m not sure”.
[80] Forbidden or proscribed by Islamic law.
Evidence of Ms AA
Ms AA adopted her statement as true and correct. She said that she is “on [her] own with a child and no-one to help”. She referred to numerous health issues, including those referred to by her general practitioner,[81] recent gall bladder surgery, and “pain in many places of [her] body”. Ms AA claimed her back problems preclude her from standing for longer than ten minutes before needing to sit or lie down. She cannot drive long distances because her feet feel like they are frozen.[82] She often asks BB to drive because he has recently obtained a learner’s permit and he often needs to assist her with activities like cleaning and shopping. This is a problem because BB is in Year 11 and needs to study. Ms AA referred to persistent migraines, where even someone whispering is “like a hammer going off in [her] head”. Ms AA said her multiple comorbidities inhibit everyday aspects of her life[83] and she had “started to see a psychologist”. She claimed it is “impossible” to cope without the Applicant and she does not know how she has managed to survive in recent years. If the Applicant is released, she believes “everything will be different” and he will “do the things he didn’t do before”.
[81] Exhibit R1, 173-189.
[82] Ibid 169.
[83] Ibid 169.
Ms AA said because of her medical conditions she does not have the strength to devote herself to BB and needs “a man around to guide him”. She said the Applicant has “always played a big role” in BB’s life and is needed to do the things only a father can do. This includes helping decide which university to attend and guidance about BB’s recently commenced first romantic relationship. Ms AA said BB is unaware of their drug and court issues, instead believing the Applicant has been detained for years because of persistent driving offences. She said that at almost 17 years of age, it will be impossible to “hide the truth” from BB any longer if there was further drug use or offending. When asked by Mr Issa if this is a “powerful motivating factor” for the Applicant to remain abstinent and law-abiding, Ms AA responded: “one million percent”.
During cross-examination Ms AA agreed she was previously addicted to heroin,[84] but claimed this was for “not more than six months” and occurred approximately 12 years ago. She claimed to have overcome this with Naltrexone implants. When asked about sentencing remarks referring to her as the Applicant’s co-offender in a series of thefts and burglaries, for which she was given an 18-month suspended sentence of imprisonment,[85] Ms AA denied any involvement in this offending. She disagreed with the judge’s remarks that she was involved in “serious offences on an ongoing basis over a period of time,”[86] or that she followed the Applicant’s lead.[87] Ms AA claimed her mother paid for and controlled the lawyer who represented her, and the guilty plea was made without her knowledge or consent.
[84] Ibid 63 [32].
[85] Ibid 67.
[86] Ibid 58 [11].
[87] Ibid 62 [27].
Notwithstanding her comorbidities, Ms AA said she is willing to help the Applicant overcome his persistent drug addiction and unmet rehabilitation needs. She claimed that having overcome heroin addiction herself, she is well-placed to know “how it’s done”. Ms AA referred to a shared bank account with the Applicant and said: “my money is his money,” estimating her assets after an inheritance following her father’s death to be approximately $1 million. Ms AA was asked about a statement she wrote to the Respondent in February 2021, in which she claimed the Applicant “tends to turn to drugs when he has a major setback in life”.[88] She agrees this is the case but does not think there can be a repeat of setbacks like the death of his parents, which deeply affected the Applicant.
[88] Ibid 171.
Mr Turner asked Ms AA about the Applicant’s plan to take up work at a country property he is contractually obligated to reside at under a contract with RacehorsesNZ. Ms AA said she has not seen the contract and is unaware of its provisions. She said the Applicant’s plan needs to be discussed “to decide which way it goes”. She opined that his preference to work for RacehorsesNZ instead of for her mother’s building company is because he “wants to show [his parents-in-law] he can do it himself”. When asked by Mr Turner how the Applicant will commute to and from this rural work location, Ms AA said she could not drive him because of her medical conditions. She said the Applicant does not have a driver’s licence and despite their efforts to find a “loophole”, cannot obtain one. Mr Turner put to Ms AA there is no set employment plan for the Applicant, to which she responded: “He will take one opportunity for sure…I’ll find a way…We’ll get someone from my family to help us start a good and proper life”.
Mr Turner put to Ms AA that her mother only tolerates the Applicant because of her threat to leave the family. Ms AA replied it had more to do with her mother not wanting to add to BB’s absence from his father. She said her mother’s “constant negative emotions” about the Applicant made them argue and she told her mother it was better to “stop all the arguments” and get on with each other. When asked what her mother’s objection to the Applicant is, Ms AA said she does not like the way he lives his life. When asked if her mother accepts the Applicant, Ms AA replied: “How can she not accept him – what can she do?”. When asked if her mother spoke with the Applicant during his imprisonment, Ms AA said she had not, but claimed her mother contributed to his legal costs.
Ms AA agreed that IVOs were taken out during her relationship with the Applicant, with herself, her mother, and BB as protected persons. She said this occurred during her drug problems when her mother was “controlling [her] life.” This included by making her separate from and divorce the Applicant. Ms AA claimed her mother forced her to take out IVOs against the Applicant, but she could not recall the allegations made. When asked about the Applicant’s recollection that the claims may have included that he hit her over a five-year period, Ms AA denied this. When asked by Mr Turner if the Applicant ever hit her, Ms AA responded:
There have been a few occasions where - hit, depends what you mean by hit. I mean, he could slap me, because I might, you know, might have been drinking out somewhere and I might have been, being a smartarse as they say…But it wasn’t hitting like, you know, with a fist. Never…it would have been my mum’s words which are blown up out of proportion. He has never hit me with his fist if that’s your question…If it was, as I said, a time once or twice, when we might have been at a party drinking and you know how women can sometimes get, like jealous or start a rage, how can I remember when it was? It wasn’t anything major for me to remember. It’s just silly.
The following exchange then occurred between Mr Turner and Ms AA:
Mr Turner: …did your husband hit you in-in 2019? Just before prison?
Ms AA: No. No.
Mr Turner: When was the last time?
Ms AA: He has never physically hit me like the way you’re trying to put it out. Never in his life…It’s never happened.
Mr Turner: I might change the word ‘hit.’ When was the last time [the Applicant] slapped you?
Ms AA: I don’t remember. It wouldn’t have been something major, for me to remember. You think I haven’t slapped him? I slap him on some occasions as well. We’re human.
Mr Turner: Has Mr Saruhanyan slapped you frequently?
Ms AA: No. No, no, no, never. That’s why I wouldn’t even remember the last time it would have happened. This is not something that happened in our family. Never.
Mr Turner: Is your evidence that Mr Saruhanyan has slapped you multiple times?
Ms AA: No. My husband does not slap me multiple times. In all our lives, we might have slapped each other once or twice. You know, and it would have been, maybe like as a joke, he has never physically abused me if that’s your question. I would never let him physically abuse me.
When asked if she intended accompanying the Applicant if he was repatriated to Uzbekistan, Ms AA said she could not because “they don’t like Jews or Christians”. She claimed to have “seen this with [her] own eyes” during visits, which was reinforced through discussions with the Applicant’s family. Ms AA said she previously visited Uzbekistan two or three times in the past, which included when the Applicant lived there for a year after his Protection Visa refusal in 2000. Ms AA said she stayed for only two or three weeks each time because she had a business to run in Australia. Her last visit was in 2005 or 2006 and she recalled staying in a flat rented by the Applicant’s family. She has previously met the Applicant’s parents, grandmother, aunt, cousin, and others, and said she remains in communication with his grandmother and aunt. Ms AA estimated this was “sometimes once every three months and sometimes twice in one month”.
Ms AA said she has a strong link to the Applicant’s family in Uzbekistan stating: “I love them and they love me”. She claimed the Applicant could not survive in Uzbekistan because there was no treatment available for his drug addiction, no jobs for him, and he would face inevitable arrest if he relapsed. When asked about the sources of information for these claims, she referred to discussions with the Applicant’s “family all the years”, her previous visits, watching the news, and “a lot of research”. She claimed:
’There is no treatment available for drug addictions. Second of all, in Uzbekistan, people with drug addictions get jailed, first round, it’s three years, first offence, and if you get a second offence it’s five years jail time.
…
…there is no medical help there, for drug rehabilitation, you have to apply through the government, procedure which is practically impossible. And then the government finds out that you’re under the influence, automatically you get jail because people in Uzbekistan who have drug problems get first time three years - I’ve done that research - then second offence five years. So automatically, if he comes into the country, if he tries to get help which will be practically impossible, but if he applies for the government help, automatically he is going straight to jail.’
Evidence of Mr John Collins
Mr Collins adopted his statement dated 7 February 2022 as true and correct. He is a New Zealand citizen and General Manager of RacehorsesNZ. He runs the company with Ms Melissa Robinson from New Zealand, who owns the business. It was noted during the hearing that Ms Robinson also provided a statement in support of the Applicant dated 5 February 2021,[89] which is almost in the same terms as Mr Collins’ letter. Mr Collins denied, however, that his letter is modelled on Ms Robinson’s.
[89] Ibid 192-193.
Mr Collins said he and Ms Robinson have known the Applicant for about ten years and are aware of his drug and criminal history. He had last seen the Applicant about five years ago and did not visit him while he was imprisoned or in detention. When asked to elaborate on the Applicant’s criminal history, Mr Collins said he was unaware of the “finer details” but thought it related to a “serious drug problem” and burglaries to fund his addiction. He believes that the Applicant moving to a farm will be beneficial for him.
Mr Collins was asked who the General Manager of RacehorsesNZ is given both his and Ms Robinson’s 2021 letter claim that they are the General Manager. It remains unclear to the Tribunal, despite Mr Collins’ explanation, what role he and Ms Robinson specifically perform. When asked who signed the employment contract with the Applicant in February 2022, Mr Collins initially said he did, but when shown a copy said Ms Robinson did. Mr Collins agreed that RacehorsesNZ was only incorporated in New Zealand in May 2022, some months after the employment contract was signed with the Applicant. He said the Applicant would be the company’s only employee at a 20-hectare property leased in country Victoria and would become their “eyes and ears in Australia”. No evidence of this lease was provided. When asked who would supervise the Applicant, Mr Collins said he and Ms Robinson would. This would be predominantly by telephone calls and visits when they were in Australia. Mr Collins said he had last been in Australia about three weeks earlier, while Ms Robinson had not been here “for a couple of months”.
When asked what duties the Applicant would undertake, Mr Collins said the Applicant would have to “be transparent”, receive horses in transit, move them from paddock to paddock, and call the vet, farrier, and dentist if required. When asked what qualifies the Applicant to be an Operations Manager on $150,000 a year, Mr Collins said it was his “previous history,” which included looking after horses in a stable for a trainer when they met about a decade ago. There is no evidence to corroborate this experience, beyond several photocopied photographs of the Applicant with a horse. Mr Collins said he also spent “several Christmases together” with the Applicant. When asked about the reference in his statement to the Applicant’s “comprehension of, dialect and fluent speaking of English”, which was contradicted by the Applicant’s poor understanding of English during the hearing and reliance on an interpreter. Mr Collins said he can understand the Applicant’s English.
When asked how the psychological appointments and random drug test conditions in the contract will be enforced, Mr Collins said he expects the Applicant to attend Narcotics Anonymous meetings and do blood and urine tests that are “110%” essential conditions of the contract. A three-bedroom house and company vehicle will be provided to the Applicant. Mr Collins said it was also an essential term of the contract that the Applicant is available at the property to receive horses shipped to Australia. When asked about Ms AA’s medical conditions, BB’s final year at high school in 2023, and whether this might affect the Applicant’s ability to live at the leased property with his family, Mr Collins said this was for the Applicant and Ms AA to decide. Mr Collins said he is unaware of the Applicant’s multiple driving offences or that he never held an Australian driver’s licence, which “is the first thing” needing to happen for the Applicant to undertake the Operations Manager role.
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 Tribunal has considered the Applicant’s and Respondent’s submissions about cl 8.1 of the Direction.[90] The available evidence includes the Applicant’s criminal history, sentencing remarks,[91] and two formal warnings from immigration authorities in 2011 and 2016. The Applicant’s criminal offending in Australia commenced 15 years ago when he was 28 years of age and has continued into his forties. His convictions between 2007 and 2010 are exclusively dishonesty offences like theft and burglary. He was initially fined, but from 2008 started to receive suspended sentences and other sanctions like compensation. In 2010, the Applicant was sentenced to three years and six months’ imprisonment for almost 30 counts of theft, burglary, and driving while disqualified. Ms AA was his co-offender for some offences. The Court considered the Applicant’s conduct “serious”[92] and indicated that absent his guilty plea, he would have been sentenced to five years’ imprisonment.
[90] ASFIC, 8-13 [46]-[78]; RSFIC, 4-5 [14]-[32].
[91] DPP v Saruhanyan & Ors [2010] VCC; DPP v Saruhanyan [2020] VCC 1682.
[92] Exhibit R1, 65 [41].
The Applicant’s 2020 offending occurred while on bail for crimes 20 months earlier[93] and involved two co-offenders. They entered a house with crowbars pretending to be police, while the occupants, their children, and other relatives were present. The Court found that the Applicant punched one of the victims in the stomach, although the Applicant denies this.[94] The sentencing remarks refer to this offending as “a serious example of this offence,” and the home invasion component fell in the “mid-range for this kind of offending”. The assault component was considered at the “lower end of the scale”.[95] The Applicant conceded during oral evidence that several aspects of his offending are serious, although Mr Issa submitted “no serious physical injury was caused to any victim” and the sentences received are at the “lower range of sentencing”.
[93] Ibid, 44 [12].
[94] Ibid 45 [17].
[95] Ibid [17]; 46 [18].
In addition to the Applicant’s criminal history, other conduct is also relevant to the Tribunal’s assessment of this primary consideration. This includes the Applicant’s persistent use of illicit drugs like heroin and methamphetamine, driving infractions, and misconduct in custodial settings. In terms of the weight given to custodial records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence[96] and although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them as ‘other conduct’ within the meaning of cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness, however, by having the records put to them for response. The Applicant was asked about several reports of misconduct, which was summarised earlier.
[96] AAT Act, s 33(1)(c).
As Kenny J has pointed out, the Tribunal should treat contemporaneous police and custodial records carefully and acknowledge the ‘limits to the material…said to evidence such conduct, including its cogency and reliability’.[97] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[98] Absent agreement by an applicant that records not leading to criminal charges or convictions are accurate, they must be treated with caution. The Tribunal has only placed weight on incidents where the Applicant agreed with the description in the incident reports or accepted that his actions constituted misconduct.
[97] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[98] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
Tribunal findings: The nature and seriousness of the conduct
The Tribunal rejects the Applicant’s evidence that impermissibly seeks to impugn the essential basis of his convictions, including for violence committed against one victim during a home invasion.[99] His guilty pleas constitute admission to and acceptance of all elements of his offending, irrespective of subsequent revisionist claims.[100]
[99] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
[100] Maxwell v R (1996) 184 CLR 501, [19].
The Applicant’s home invasion offence involved the use of violence. Some victims were children,[101] who are plainly vulnerable members of the community.[102] The Tribunal rejects submissions on the Applicant’s behalf that he “has not engaged in violent acts against general members of the community”.[103]
[101] Exhibit R1, 42 [5]; 45 [17]. Clause 8.1.1(1)(a)(i)-(ii) of the Direction.
[102] Clause 8.1.1(1)(b)(ii) of the Direction.
[103] Exhibit R1, 106.
The Applicant’s frequent offending and other conduct reflects an increasing seriousness over time. This is evident from its repeat nature, recent use of violence, presence of two co-offenders, increasing severity of sentences and other aggravating factors like pretending to be a police officer. The Applicant has frequently breached conditional liberty provisions, including the privilege of bail. He has driven repeatedly without ever holding a driver’s licence and while affected by drugs like heroin. He pretended to be a police officer while invading a home. The totality of his offending and other misconduct during the last 15 years reflects a blasé approach towards and persistent disrespect for Australian laws.
Imprisonment is a sentence of last resort and the most severe sanction available to our courts.[104] The sentences the Applicant has received are routinely below the statutory maximum sentences available. An example is the 25-year maximum sentence available for home invasion. His sentence of three years’ imprisonment for this offending nevertheless reflects the objective seriousness of his conduct.
[104] See for example: Sentencing Advisory Council, “Imprisonment,” <
The Tribunal rejects the submission that the sentencing judge in 2020 “did not consider [the Applicant] to be a risk to the community”, or that he does not have “a predisposition to criminality”.[105] This is particularly so given the Applicant was not dissuaded from reoffending by non-custodial or custodial sentences. This includes a sentence of three years and six months’ imprisonment a decade earlier. The cumulative effect of the Applicant’s criminal and other conduct over the last 15 years has imposed considerable costs and consequences on victims and the broader community.
[105] ASFIC, 9 [51]-[52].
All the Applicant’s prior crimes are contextualised by long-term drug use since 2007.[106] Some of his driving offences, however, appear to have occurred at times when he was not addicted to drugs. Notwithstanding the absence of drug possession convictions, it is clear his conduct encompasses use of illegal drugs like heroin and methamphetamine since 2007.[107] He has also been involved in multiple incidents of misconduct while imprisoned, which he acknowledged. The Tribunal rejects the Applicant’s submission that “there is no evidence…[he]…has any compliance or behavioural issues in prison…”[108]
[106] Exhibit R1, 46 [21]-[22]; ASFIC, 9 [47].
[107] Ibid, 59 [15]. Such conduct falls within the meaning of cl 8.1.1(1) of the Direction.
[108] ASFIC, 11 [68].
The Tribunal accepts the Applicant’s submission that he has previously been given “a lot of chances.” This includes multiple rehabilitative opportunities at taxpayer expense and two formal warnings from immigration authorities in 2011 and 2016. On both these occasions, he was permitted to remain in Australia, albeit with clear warnings about the potentially dire consequences for his ability to remain in Australia if he reoffends. Despite these opportunities, the Applicant persistently reoffended. There are few if any noteworthy gaps where convictions are not recorded against him, or he was not imprisoned, or under some form of conditional liberty.
The totality of the Applicant’s offending and other misconduct is very serious.
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).
Offending and remorse
The Applicant refers to battling “drug addiction for almost 20 years”. He contextualises his drug use variously as resulting from news of his father’s murder in Uzbekistan, his mother’s cancer diagnosis, separation from Ms AA, the “challenges of adapting to a new life [in Australia] and managing a new baby, [which made him feel] frustrated, depressed and stressed”.[109] He claims to have controlled his heroin addiction with Methadone, Naltrexone implants, and more recently monthly Naltrexone injections. He nevertheless succumbed to ice addiction in 2017, claiming this was because of “being around the wrong people”.[110]
[109] Ibid 78.
[110] Ibid 144.
The evidence discloses that the Applicant commenced using heroin in 2007, which is well after his father’s purported murder in 2001 and his mother’s death from cancer in 2005.[111] In 2010, a psychologist told the Court the Applicant was “probably” suffering from “depressive mood disorder and substance dependence disorder”.[112]
[111] Ibid 105 [2. – first paragraph].
[112] Exhibit R1, 60 [19].
Some evidence of remorse is evident from the Applicant’s guilty plea for his most recent crimes.[113] Repeated expressions of remorse since 2007, however, have not been accompanied by meaningful changes in his behaviour. In 2010, for example, his early guilty plea was considered reflective of remorse,[114] only to be followed by more offending. The frequency and increasing seriousness of his crimes cuts across his claimed contrition.
[113] Ibid 47 [26].
[114] Ibid 61 [24].
Conduct in custodial settings
There is some evidence of the Applicant being generally well-behaved and compliant in custodial settings. This includes reports of some positive contributions through work. Other reports, however, refer to him being found in possession of contraband, illicit substances, returning positive urine tests, refusing / being unable to produce urine samples, and behaving in an abusive, aggressive, or violent way.[115]
[115] Exhibit R2, 38; 40 [26 January 2021]; 81; 86; 102; 104; 126.
Rehabilitation
In 2010 the Court considered the Applicant’s prospects of rehabilitation were “probably good”.[116] In 2020, however, after a further decade of drug addiction and offending, the Court considered his rehabilitative prospects are “guarded” at best. He was noted to be a long-term drug user for whom previous “dispositions…intended to assist with [his] rehabilitation, failed to achieve that desired end”.[117] The Court also noted he had failed to take advantage of non-custodial dispositions.[118]
[116] Exhibit R1, 61 [22].
[117] Ibid 46 [22].
[118] Ibid 51 [49].
The Tribunal has considered materials relevant to the Applicant’s past counselling[119] and rehabilitative courses, including during his most recent term of imprisonment. He has received Naltrexone implants, was on the Methadone Program for a time, and most recently transitioned to monthly Naltrexone injections. The Applicant is noted to have used an illicit drug during residential rehabilitation in 2008[120] and consistently reoffended despite undertaking to change the course of his life, including while under conditional liberty. The Tribunal also notes some references to the Applicant being unwilling to be involved in rehabilitative programs:[121]
Karen states…he does have a drug problem and that without OSTP Program[122] he will not be able to cope. Karen states…he does not wish to undertake any programs to assist his drug issues. He also states it is his decision and he is OK with that.
[119] Ibid 155-160.
[120] Ibid 59 [16].
[121] Exhibit R2, 103-104.
[122] Opium Substitution Therapy Program.
The Applicant said that during his most recent period of imprisonment he has finally come to terms with the necessity to remain abstinent and lead a law-abiding life. He claimed that he now better understands no further chances will be available if he reoffends:
“I know that I have been warned about committing further offences and that I have been given chances by Immigration before. I realise that I cannot risk any further drug taking and I have been successfully treated for heroin addiction and I believe that I can overcome ice addiction if given appropriate medication and treatment…I know this will be my third and last chance to redeem myself.”[123]
[123] Exhibit R1, 90.
The Tribunal has considered a letter dated 11 February 2021 from a business owner, Mr Tigran Aganesov.[124] Mr Aganesov did not give evidence during the hearing but states in his letter he has known the Applicant for 21 years and was “personally responsible for assisting Karen with his drug problem”. Mr Aganesov states “I believe we failed Karen and our system failed him”, because the Applicant “was still able to find himself in a situation where crime was the only option left to support his drug habit”.
[124] Ibid 194-195.
Risk
Mr Issa said the critical difference in the Applicant’s current circumstances if released is the “convergence of three factors”. These are appropriate rehabilitative therapy, a stable job on a high income, and family support. It is contended these factors ameliorate his recidivism risk to an acceptable level.
At his 2020 sentencing, the Court considered the Applicant to be a “medium risk of reoffending”.[125] The Tribunal notes the Applicant was also rated variously as a “MEDIUM” and “HIGH” risk of reoffending using the LS/RNR assessment methodology while imprisoned and has been previously categorised as a “serious violent offender”.[126] The risk assessments have included “High” assessments for several factors including “Alcohol / Drug Problem,” “Medium” rating for “Companions”, and a requirement that rehabilitation be undertaken for his drug issues and “violence”.
[125] Ibid 51 [49].
[126] Exhibit R2, 4; 54-57; 80; 94; 129; 136; 246.
The Applicant was denied parole on 8 October 2021, with the Adult Parole Board concluding: “the risk to the community of releasing you on parole is greater than any benefit to the community of releasing you on parole”.[127]
[127] Ibid 121.
Protective factors
In terms of protective factors, the Applicant invokes abstinence from illicit drugs in custodial settings, prospects of stable accommodation and employment, supportive family, and BB’s interests. The Tribunal has considered a job offer dated 14 September 2020 for the Applicant to undertake “labour on building sites” with a company owned by his mother-in-law and her new partner.[128] This letter is now two years old and was made in the context of the Applicant’s 2020 court appearance. The Applicant made clear in his oral evidence he does not intend to take up the offer, and there is no recent evidence from the offerors that it remains open. There is also no evidence to corroborate the claim that the Applicant will be “trained up to a managerial role” or “have an ownership interest in this business”. A subsequent written reference from the Applicant’s stepfather-in-law and mother-in-law dated 15 February 2021[129] contains commentary regarding the Applicant’s purportedly close relationship with Ms AA’s parents, including that he regarded Ms AA’s father as a “father of his own”. These claims stand in stark contrast to the evidence at the current hearing, which includes: the Applicant having a fractious relationship with Ms AA’s parents who disapproved of him; that Ms AA’s parents forced her to separate from and divorce him; that Ms AA’s mother forced Ms AA to take out IVOs against the Applicant; that Ms AA’s mother currently tolerates the Applicant at best; and there has been no direct contact between the Applicant and Ms AA’s mother for some years.
[128] Exhibit R1, 190.
[129] Ibid 191.
The Tribunal has considered the reference of Mr John Collins of RacehorsesNZ Pty Ltd, who contracted with the Applicant in February 2022 to appoint him as the company’s Operations Manager in Australia. Given the Applicant has been imprisoned and then detained for several years, including earlier this year when the contract was signed, he is yet to commence work under this contract. Moreover, the evidence about the Applicant’s specific role, method of supervising rehabilitative conditions under the contract, where the Applicant will reside, and how he will travel to and from the work location in rural Victoria, was difficult to follow. It is unclear at best how effective this work offer might be as a protective factor, such that less weight is placed on it.
Similar protective factors to those above were previously considered by the Court in 2010 to be probative of the Applicant’s rehabilitative prospects,[130] only for him to relapse and reoffend. The Tribunal notes he intends to live with Ms AA if released, who was his co-offender in several thefts and burglaries during 2008,[131] and previously addicted to heroin herself.[132] The Court heard evidence from a psychologist during the trial of the Applicant and Ms AA in 2010, that she exhibited “extreme emotional vulnerability” and an “adjustment disorder caused by [her] relationship with [the Applicant]”.[133] The Tribunal has considered a letter from Ms AA dated 9 February 2021, stating she has “not taken any illicit drugs for 10 years”.[134] But for the reasons previously adduced, her multiple comorbidities do not persuasively convey an ability to contribute meaningfully to the Applicant’s rehabilitation.
[130] Exhibit R1, 61 [22].
[131] Ibid 56 [2]; [8].
[132] Ibid 63 [32].
[133] Ibid 64 [35].
[134] Ibid 171.
Expert evidence
The Tribunal has considered a four-page report of drug and alcohol counsellor Ms Amanda Brown of Lamberti Associates Rehabilitation Consultants dated 10 August 2022. Ms Brown also gave oral evidence during the hearing and was cross-examined. Ms Brown said she is willing to provide the Applicant counselling and monitoring to help address his substance abuse issues over a 12-month period. This includes drug screening tests.

The Tribunal has also considered four documents tendered into evidence as Tribunal documents without objection of the parties, suggestive of the availability of drug rehabilitation in Uzbekistan.[170] These are again somewhat dated, although Exhibit T4 is dated 2022 and is published by the United Nations Office on Drugs and Crime.
[170] Exhibits T1 – T4.
Tribunal findings: International non-refoulement obligations
There is no dispute the receiving country for the purposes of s 5(1) of the Act is Uzbekistan. There is uncertainty, however, about the Applicant’s right to Armenian citizenship given his grandparents birth there. The Tribunal accepts he has made no enquiries in this regard.
The Applicant’s claims he has been persecuted while growing up in Uzbekistan because of his Christianity and Armenian ethnicity. This conflicts with other information that he had a happy childhood, his parents were employed, his aunt owned a farm and horses that he worked with, he was able to complete high school to Year 11, undertook training as a dental technician, and was selected for an elite sporting academy and eventually national representation in an international sporting competition in Melbourne that the Uzbek Government funded. Moreover, his oral claim at the hearing that he was unable to work in Uzbekistan because of his religion and ethnicity, is contradicted by his previous barrister’s submissions to the Court and Ms Brown’s report that the Applicant trained and worked “as a dental technician” in Uzbekistan prior to arrival in Australia.[171] The Applicant has also travelled freely between Australia and Uzbekistan on several occasions, including with Ms AA after his Protection Visa application was rejected in 2000. This is despite claiming that Jews and Christians are persecuted in Uzbekistan.
[171] Exhibit R1, 128.
It remains unclear to the Tribunal, despite the Applicant’s explanations, why the person who purportedly murdered his father over 20 years ago would seek to harm him upon return, or how that person would know of his return, or be able to identify him and where he lives. This is particularly so given the only source for the Applicant’s claimed fear of this man is the Applicant himself, purportedly based on something his then 13-year-old brother told him over 20 years ago. On his own evidence, the Applicant has had no contact with the purported murderer since.
The Tribunal does not accept the submission that the Applicant has no family or other support in Uzbekistan if he were returned. He has an aunt, grandmother, cousin, and close friend, who he and Ms AA communicate with. He has previously been able to travel to Uzbekistan to see his family there. There is no evidence to corroborate the Applicant’s past assertion that his aunt and grandmother intend to relocate to Russia and are therefore unable to assist him.
The Applicant’s claim that there was a coup d’état in Uzbekistan two months ago in which 200 people were killed and that authorities do not want “non-Uzbeks living there anymore”,[172] rests on his uncorroborated claims. It is also contradicted by evidence from DFAT. The Applicant’s claims in this regard are not accepted.
[172] Ibid 93; 106.
The claim that the Applicant will be “systematically or discriminately denied treatment” for drug addiction, or “institutionally criminalised” and subjected to “significant harm” because of “grossly inadequate” public treatment for drug addiction, rests on his assertions alone. There is no evidence he will be treated differently to other Uzbek citizens. The framework of drug rehabilitation facilities referred to in other evidence undermines his claim that drug rehabilitation is forbidden under the Muslim religion and he will be discriminated/persecuted against.
The Tribunal notes references in evidence to the availability of opioid substitution therapies in Uzbekistan, although it can be accepted the quality of facilities and treatment may be below that in Australia. The Applicant’s claim that he could not afford access to private medical and rehabilitative services is diminished by his and Ms AA’s claims that they have access to considerable shared financial assets. This diminishes the force of his claim that an inability to access either public or private treatment for his drug addiction, because of a lack of employment opportunities, will lead to the “inevitable consequence” of relapse into drug addiction, crime, and arrest.
The Applicant’s claim that he will be further ostracised because of not having any “Uzbek language utility”, is diminished by his concession that Russian and other languages continue to be widely spoken in Uzbekistan.
The Applicant’s claims about indefinite detention are speculative at best. Even if it were found he is owed non-refoulement obligations, this alone does not give rise to indefinite detention.[173] Considering how long a non-citizen may be detained for is an imprecise undertaking and encompasses future-focussed factors such as applications yet to be made, ministerial discretion yet to be considered,[174] potentially changed circumstances in a receiving country, the possibility of third-country relocation, voluntary request for removal, and other irresoluble branches and sequels of future events. This task is only exacerbated by the short statutory timeframe in which decisions must be made.
[173] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [96] (Wigney J).
[174] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
There is no evidence about what the Applicant or Respondent may do in the event of a non-revocation decision, but the Applicant can apply for a Protection Visa. If he does, this must be conclusively assessed before consideration is given to any character or security concerns. Detention is legal while a Protection Visa application is considered. Even if a Protection Visa application were refused, there is no evidence it is not reasonably practicable to return the Applicant to Uzbekistan. This includes because of his past freedom to travel to and from Uzbekistan without apparent difficulty.
Having identified some of the potentialities, however, the Tribunal is not required to engage in speculation or fact-finding about future events,[175] and respectfully adopts the reasoning of the Court in Aliv Minister for Immigration and Border Protection (Ali):[176]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
[175] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[176] [2018] FCA 650.
In DOB18[177] at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[177] [2018] FCA 1523.
The Tribunal finds that in the specific circumstances of this case, it is not possible to reliably determine the Applicant’s non-refoulement claims. The appropriate course is to defer consideration to the Protection Visa assessment process that remains open to him.[178] This consideration is therefore not enlivened and carries neutral weight.
[178] 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 lived in Uzbekistan from birth until his arrival in Australia in his twenties. On his own evidence he has worked in numerous work roles since arriving in Australia and completed several vocational courses. There is a paucity of corroborative evidence for the Applicant’s work claims, but any employment he has undertaken, and courses completed, can only have enhanced his employment prospects.
There are several references to the Applicant suffering depression,[179] although no expert diagnosis. The Applicant said he is prescribed monthly Naltrexone injections to help manage his heroin addiction. In his documentary evidence he stated: “Apart from my heroin and ice addictions I had scabies from unsanitary conditions in prison”.[180]
[179] Ibid 49 [39]; 60 [21]; 105; 191.
[180] Ibid 92.
The Applicant stated in documentary evidence he has “no support” to re-establish himself if returned to Uzbekistan, because he has not lived there for 20 years and his aunt and grandmother intend relocating to Russia.[181] He also claimed that he “does not have any real contact”[182] with his grandmother and aunt, which is contradicted by other evidence. As previously discussed, there is no evidence to corroborate the claim that his remaining immediate family members in Uzbekistan intend relocating to Russia.
[181] Ibid 93.
[182] Ibid.
The Applicant submitted that separation from Ms AA and BB is a relevant factor under this consideration.
Mr Issa stated that “significant and overwhelming impediments” confront the Applicant including an inability to access “drug therapy” like Naltrexone injections and “ongoing treatment in a comparable facility” to Australia. For the reasons previously adduced, this is not made out on the evidence and rests largely on the Applicant’s uncorroborated claims.
Tribunal findings: Extent of impediments if removed
There are impediments confronting the Applicant if returned to Uzbekistan, particularly after living in Australia for so long. He has unresolved opioid and methamphetamine addictions, criminal tendencies, and has spent extended periods in custodial settings. There is no evidence, however, he would be treated differently to other Uzbek citizens. It is also noteworthy that despite having access to what he claims are superior facilities and services in Australia, his engagement with these opportunities has not assisted him in breaking the cycle of addiction and offending.
No substantial language or cultural barriers are disclosed, although there is likely to be significant re-adaptation required to life outside of a custodial setting, irrespective of location. The Applicant said he is unsure if he has any accumulated superannuation from his past work in Australia, but on his and Ms AA’s evidence about their considerable shared financial resources, he is not impecunious.
There is no evidence to corroborate the Applicant’s claims about being isolated in Uzbekistan. The evidence discloses continued and positive engagement with his grandmother / aunt / cousin / friend overseas, including by telephone. There is no evidence he could not count on some measure of emotional or practical support from immediate family. Given the Applicant’s past work in Australia, and the work and vocational training he has undertaken while imprisoned, this can only have enhanced his work prospects.
The materials relied upon by the Applicant do not support the contention that rehabilitative drug therapies are unavailable in Uzbekistan. The Tribunal also does not accept the relevant test is whether services and facilities are comparable to those in Australia, but is in the context of what is generally available to other citizens of that country. There is no evidence to suggest the Applicant would be treated differently to other Uzbek citizens, albeit the standard of services is likely to be below that available in Australia.
The Tribunal accepts that separation from Ms AA and BB can only add to the impediments experienced by the Applicant, including because of a possible deterioration in his mental health. This is only ameliorated to some extent by the ability of Ms AA and BB to visit him in Uzbekistan or a third country.
The Tribunal accepts that because the Applicant has not returned to Uzbekistan since 2005, coupled with his drug addiction and unmet rehabilitation needs, limited availability of family support, and possible worsening of his mental health, this consideration weighs very substantially 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 victims of the Applicant’s persistent offending over the last 15 years. But there is no evidence from any victim 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 2000 as an adult. His closest family relationships in Australia are with Ms AA and BB. The interests of the latter were dealt with under Best interests of the child. The Applicant said he does not have much contact with Ms AA’s family “because they disapprove of [him]”,[183] and this was corroborated in oral evidence. He nevertheless referred to his parents-in-law, two nephews and a niece in documentary evidence. There is no evidence from these individuals, however, to corroborate his claim that an adverse decision would cause them “stress and disappointment”.[184]
[183] Ibid 88; 105 [2.].
[184] Ibid 89.
Apart from Ms AA and BB, there is no statement from any member of the Applicant’s direct family in evidence before the Tribunal. He refers to a brother in the United States who he claims is an Australian citizen,[185] but there is no evidence to corroborate this. The Tribunal finds that the interests of the Applicant’s family members living overseas do not fall within the meaning of this consideration.
[185] Ibid 105 [second last paragraph].
The Applicant states Ms AA has “many medical problems…limited mobility [and is] emotionally fragile”.[186] This is corroborated by her oral evidence, sentencing remarks, and medical records. The Tribunal has considered several records referring to a day surgery procedure Ms AA underwent in July 2021,[187] an undated letter referring to medical conditions,[188] a letter from a specialist,[189] diagnostic results, elective surgery advice, and other records relevant to her health needs.[190]
[186] Ibid 84.
[187] Ibid 117.
[188] Ibid 169-170.
[189] Ibid 173-174.
[190] Ibid 176-189.
The Tribunal has considered a letter in support of the Applicant from Mr Tigran Aganesov, dated 11 February 2021.[191] Mr Aganesov acknowledges the Applicant has been given several chances in the past, but asks he be given one further opportunity.
[191] Ibid 194-195.
The Applicant referred in his documentary evidence to intermittent work between 2000 and 2019 as a process worker, plasterer, and multiple other roles,[192] for which there is little corroboration.
[192] Ibid 91.
Tribunal findings: The strength, nature, and duration of ties to Australia
The Applicant arrived in Australia as an adult and has no immediate family members here apart from Ms AA and BB. Less weight is placed on this consideration given that his drug-taking and crimes commenced relatively soon after arrival.
Any employment the Applicant has undertaken appears sporadic given his prolonged addictions. There is scant evidence of positive contributions. The Tribunal accepts, however, he has undertaken some work and paid some taxes. The Tribunal also accepts he has previously been involved in the life of his ethnic community to some extent. There is no evidence, however, to corroborate this. Only some weight can be attributed to the Applicant’s positive contributions. For much of his stay here he has instead been a persistent burden on the public purse through the adverse consequences of his offending and reliance on taxpayer-funded payments and services.
For someone who has spent so long in Australia, the strength of the Applicant’s ties is limited at best. Apart from Ms AA and BB, there is no discernible impact of a decision in this matter on those who support him except perhaps an emotional one. Given these other relationships have been conducted predominantly through telephone calls and perhaps infrequent visits, this could continue in the event of an adverse decision. As for Ms AA, her evidence that the Applicant would be of significant assistance to her is problematic in circumstances where he intends to work in country Victoria and the Tribunal’s pessimistic assessment about his risk of relapse and reoffending. In these circumstances less weight is placed on the prospect of him fulfilling Ms AA’s expectations.
After approximately 20 years living here, however, what relationships the Applicant has are predominantly in Australia. On a beneficial reading of the evidence, this consideration weighs moderately 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. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason on these facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
During the last 15 years the Applicant has committed numerous offences. When considered in conjunction with other misconduct, including on our roads and in custodial settings, he has shown a persistent disregard for Australian laws. This is despite opportunities provided by the Court’s through non-custodial dispositions, multiple rehabilitative opportunities, and two previous formal warnings from immigration authorities. The totality of his offending and other conduct is such that the Tribunal is unpersuaded by his latest claims about remorse, insight, and rehabilitation. The Applicant’s circumstances are not such that he would be afforded a higher level of tolerance by virtue of having lived in Australia since a young age or for most of his life. He arrived here in his mid-twenties and has been a persistent recidivist offender and illicit drug user into his forties. He has caused harm to multiple victims and the broader community through the costs and consequences of his conduct.
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 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.

201. I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 16 September 2022

Dates of hearing: 7, 8 and 9 September 2022

Advocate for the Applicant:
Mr Sam Issa

Solicitors for the Applicant: Firmstone and Associates

Advocate for the Respondent: Mr Peter Turner

Solicitors for the Respondent: MinterEllison

[2022] AATA 3070

16 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Dates of hearing:	7, 8 and 9 September 2022
Advocate for the Applicant:	Mr Sam Issa
Solicitors for the Applicant:	Firmstone and Associates
Advocate for the Respondent:	Mr Peter Turner
Solicitors for the Respondent:	MinterEllison