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

Shemaon and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2650 (12 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4834
Re:Martin Shemaon
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 August 2022
Place:Sydney

The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.....................................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – expectations of the Australian community – impediments to removal – links to the Australian community – decision set aside and substituted
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1967
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Fox v Percy [2003] HCA 22
FYBR v Minister for Home Affairs [2019] FCAFC 185
Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Li v Minister for Immigration and Multicultural Affairs [1999] FCA 870
Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 64
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
Nigro v Secretary to the Department of Justice [2013] VSCA 213
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Shi v Migration Agents Registration Authority [2008] HCA 31
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Academic Dictionaries and Encyclopedias, Notorious (gang): < Morgan, Christopher Dowling and Isabella Voce ‘Australian outlaw motorcycle gangs involvement in violent and organised crime’ (2020) Australian Institute of Criminology, Trends and issues in crime and criminal justice 586
Isabella Voce, Anthony Morgan, Christopher Dowling, ‘Early-career offending trajectories among outlaw motorcycle gang members’ (2021) Australian Institute of Criminology, Trends and issues in crime and criminal justice 625
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
NineMSN, Australia’s most dangerous bikie gangs: < FOR DECISION
Chris Puplick AM, Senior Member
12 August 2022

On 5 June 2015 Mr Martin Shemaon (the Applicant) was convicted of several criminal offences which resulted in him receiving a cumulative custodial sentence of eight years with a five-year non-parole period.
This conviction led to the Minister (the Respondent) determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[1] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[1] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, of which he was notified on 3 April 2019.
As provided for under the Act, the Applicant made “representations” on 11 April 2019 for the revocation of the cancellation decision. However, on 1 June 2022 a delegate of the Minister decided not to revoke the cancellation.[2]
[2] Act s 501CA(4).
On 9 June 2022 the Applicant then applied to this Tribunal for a review of that decision and the matter was heard on 3 and 4 August 2022. The hearing was conducted in person with both parties legally represented.
Under paragraph 500(6L)(c) of the Act there is a specific time limit within which the Tribunal must make its decision, otherwise the Minister’s decision is taken to be affirmed. In this instance that date is 24 August 2022.
THE APPLICANT’S PERSONAL NARRATIVE [3]
[3] Material sourced from the Statements of Facts, Issues and Contentions (SFICs) submitted by both Parties.
The Applicant was born in July 1986 in Baghdad, Iraq and claims to be of Assyrian ethnicity.[4] He and his parents and siblings fled Iraq in 1990, first to Jordan and thereafter to New Zealand/Aotearoa in 1992. In 1999[5] all members of the family, including the Applicant obtained New Zealand citizenship.
[4] G-documents at 91.
[5] G-documents at 47.
In April 2002 the Applicant’s father (then aged 46 years), with whom he had a close relationship died suddenly and this had what has been described as a “devastating impact”[6] on the Applicant. It is further reported that as a result of this traumatic event the Applicant decided to relocate to an entirely new environment in Australia. He arrived In Australia in November 2003. He was 17 years of age at the time and possessed a Special Category (Class TY) (Subclass 444) visa which is available to citizens of New Zealand. It does not appear that the Applicant has returned to New Zealand at any time since that date.
[6] Tim Watson-Munro’s Psychologist Report dated 28 July 2022 at 4 (hereafter Watson-Munro report).
All of the Applicant’s immediate family are now resident in Australia. An elder sister had migrated to Queensland some years before the Applicant’s arrival in 2003. Relevantly for these proceedings, his mother (Bella Zaia) and his sister (Linda Shemaon) joined him in Sydney in 2005 and remained here until 2009 when they returned to live in New Zealand[7] “due to financial reasons.”[8] In 2013 they became aware that following the Applicant’s sentencing to a term of imprisonment in excess of 12 months, there was a possibility of his being returned to New Zealand, so they then returned to Australia sometime in late 2013 or early 2014. [9] Oral testimony was given to the effect that five of the Applicant’s other siblings settled in Australia at various times between 2004 and 2008.
[7] Phillip Pithyou’s Letter dated October 2013, G-documents at 101.
[8] Caroline Shemaon’s Letter undated, G-documents at 113.
[9] Bella Zaia’s (Applicant’s mother) Letter undated, G-documents at 103.
The Applicant married an Australian citizen in 2008 but this marriage did not last, and the couple separated in 2010. There are no children of this marriage.
The Sentencing Judge remarked that the marriage “did not work, because he was on drugs”;[10] the Applicant’s mother says that “he was so hurt that the love of his life had just left him with no legitimate reason”;[11] and his sister (Caroline) says that the Applicant “tried to work things out with her but she would always act in a very violent manner towards him.”[12] When questioned at hearing, the Applicant confirmed that all three reasons for the failure of his marriage were correct. The Tribunal, however, is inclined to place more significant weight on the details provided by Dr Anthony Levine in his psychiatric report prepared for the Court and dated 30 May 2015 where he records:
“He told me he had one significant relationship in which he got married, and he told me the marriage broke down because ‘I was on drugs, I was behind on bills, I was spending money on drugs, I wasn’t supporting her, she was working also, I was pretty bad’. He told me they have no contact.”[13]
[10] G-documents at 50.
[11] Ibid at 103.
[12] Ibid at 112.
[13] Dr Anthony Levine’s Psychiatric Report dated 30 May 2015 (hereafter Levine Report), Further Supplementary documents filed 29 July 2022 (hereafter Tender Bundle 2) at 35.
The Applicant did not complete Year 10 at school and appears to have left school at age 16 or 17. The Sentencing Judge in 2015, noted that the Applicant had “limited employment”[14] although the Applicant claims that he was employed between 2004 and 2011 as a “shop fitter”[15] and the Respondent credits him with contributing “positively to the community through employment”.[16]
[14] G-documents at 48.
[15] Ibid at 93.
[16] Respondent’s SFIC at [46].
From 2011 onwards the Applicant was at liberty in the community for only a brief period of time due to his continuing incarceration.
The Applicant details extensive family connections in Australia where his mother and six siblings reside. He also has family comprising six uncles/aunts; two nieces/nephews and 23 cousins all resident in this country.[17] It does not appear that he has any immediate family members living in New Zealand other than an uncle and a cousin with whom he appears not to have maintained any ongoing contact.
APPLICANT’S OFFENDING RECORD[18]
[17] G-documents at 91.
[18] Ibid at 34-36.
The Applicant’s history of criminal offending will be considered below under separate headings related to traffic offences, drug offences, other criminal offences and offences while in custody.
Traffic offences
The Applicant had two significant traffic offences. The first was committed in 2008, related to driving with an expired licence which led to a fine and a three-year disqualification and the second traffic offence was in 2014 which appears to be for driving while unlicensed and which resulted in a section 10A[19] conviction but no further penalty.
[19] Ibid at 55; Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A.
His driving record is otherwise appalling, so much so that he managed to accumulate a debt of some $4,000.00 in traffic fines in the period of December 2006 to September 2008.[20]
[20] Supplementary documents (hereafter Tender Bundle 1) at 18-19.
Drug offences
The Applicant was first charged with a serious offence following an incident reported on 1 May 2011[21] when the Applicant, in company with two others stood over or intimidated certain parties from whom they were apparently attempting to collect “four hundred thousand dollars” in relation to some sort of drug deal. This led to the Applicant being placed before the Court and convicted on the offence of “stalk/intimidate intend fear of physical/mental harm” for which he was placed on a bond for 20 months.[22]
[21] Further Supplementary documents filed 2 August 2022 (hereafter Tender Bundle 3) at 18.
[22] G-documents at 36.
In relation to this offence, the Applicant maintained before the Tribunal that while he and two co-offenders went to the victim’s house to extract payment, he remained outside the house by some 15 metres[23] while his co-offenders entered and intimidated and threatened the occupants. He denies personally making any threats to anyone nor he claims, because of his distance from the house, was he actually aware of the details of what was happening inside at the time.
[23] This distance was subject to significant disagreement between the parties at hearing.
The Applicant then had a number of convictions related to drug possession and supply. In April 2013 he was convicted of “supplying cannabis leaf between 8 and 13 September 2011” and was sentenced to two years imprisonment (as part of an aggregate sentence of three years.[24] The length of this sentence appears to reflect the fact that the Applicant was found to be in possession of 99.6[25] grams of cannabis and $2,780.00 in cash and had been employing two “drug runners” to make some forty deliveries on his behalf in a period of less than one week.[26] At the same time he was convicted of being in the possession of the proceeds of crime. In his Statement the Applicant contextualises his involvement in drug selling as something necessitated by his inability to cope financially after he left jail in April 2013. He stated that although he had a job which paid him $750.00 per week,[27] (as a New Zealand citizen he was not eligible for any Centrelink payments) as reasons for his financial difficulty.
[24] G-documents at 63-64.
[25] Tender Bundle 3 at 12 and 13. A police report on 13 September 2011 gives figure of 155.18 grams.
[26] Ibid at 60.
[27] Applicant’s Statement dated 28 July 2022 at [37].
In his evidence the Applicant did not seek to qualify or deny any particular aspects of this offence and conviction.
Other criminal offences
In the same proceedings as the above drug matter, the Applicant faced another charge which related to being an accessory before the fact of a robbery which took place in September 2011. In this instance the Applicant acted in concert with others to “set up” an innocent third party and rob him of $11,000.00 under the pretext of selling him a motor vehicle (hereafter the car sale offence). The Sentencing Judge (Sides J) outlined the offence:
This Offender, along with the [Co-offender 1]… was charged with being an accessory before the fact to the robbery. They met up with the victim and arranged for the sale of the car. They then counselled and procured co-offender 2 to meet the victim… the next day and to take money from him by force. [Co-offender 1] parked the Audi, or arranged for it to be parked… as part of a plan to trap the victim. On instructions of the [Co-offender 1] who was supported by the Offender, [Co-offender 2] took over communications with the victim on the day of the offence. The Offender and [Co-offender 1] were not present at the time in the location of the robbery and were not aware that [Co-offender 2] planned to and did in fact commit the robbery using a weapon. Consequently, in the case of each of them, they have pleaded guilty to being an accessory before the fact to robbery simpliciter.[28]
[28] G-documents at 60; Tender Bundle 2 at 29-34.
There are a number of matters to be noted arising from these proceedings. The first is that the Applicant committed this offence while he was on (police) bail at the time arising from his offence of May 2011 which was an offence of “stalk/intimidate intend fear of physical/mental harm” for which he was eventually placed on a section 9 bond for 20 months when the matter came before the Court in December that year.[29]
[29] Ibid at 36.
Secondly, the Sentencing Judge accepted that the Applicant was “genuinely remorseful”[30] and that this “Court reflected this remorse by leniency quite separately” to the discount provided for a guilty plea. His Honour found:
In the circumstances, on the limited evidence before it, the Court is satisfied that his prospects of rehabilitation and not re-offending are reasonable to good.[31]
[30] Ibid at 56.
[31] Ibid at 61.
Given the time that the Applicant had spent in prison awaiting trial, once the sentence was imposed in April 2013 he was released immediately on parole.
When challenged in the Tribunal hearings as to the extent of his involvement in this incident and the extent to which he counselled and procured in the commission of the crime, the Applicant stated that he knew that the victim was being set up to be robbed but that he was not involved directly with the victim and furthermore had no idea that the victim would be threatened with violence if he did not part with the money.
In January 2014 his conviction was for “supply indictable quantity of prohibited drug (amphetamines)” for which he received a sentence of seven months with a non-parole period of five months.[32] On this occasion the offence committed took place on 1 August 2013 while the Applicant was on parole thus aggravating the seriousness of his offending. The amount of amphetamine in question was some 3.75 grams.[33]
[32] Ibid at 55.
[33] Tender Bundle 1 at 12-14.
The Tribunal notes that the Applicant had a long history of substance abuse which the Court in 2015 described as:
In terms of the factors relating to offending, he chronicles the long history of substance abuse, mainly cannabis and methylamphetamine. Experimenting with cannabis between 15 and 17. He commenced using methylamphetamine from 19, commenced using alcohol at 15. Continued to binge drink until his incarceration. He said that he used the drugs and alcohol to block out trauma.[34]
[34] G-documents at 48; Levine Report, Tender Bundle 2 at 35.
On that occasion the Sentencing Judge gave the Applicant some credit for what His Honour described as a process whereby “he continues to address his unresolved abuse issues.”[35] As will appear below, the Applicant’s claims to have dealt with these problems is somewhat vitiated by his record of drug use while in custody.
[35] G-documents at 48.
Apart from the robbery and drug offences the Applicant’s most recent major offence (hereafter the firearms offence) took place on 2 August 2013 and came before the Court on 5 June 2015. The Applicant’s charmingly anodyne description of this offence is as follows:
“At around 12.05am applicant travels in convoy with BFL group to house in Eagle Vale. On the way he is handed loaded firearm. On arrival at the house one member of the group kicks down the front door and other bash windows, (but nobody enters) and the applicant yells words to the effect, “It’s BFL we’re here to get you”, then fires a number of rounds through the front window of the house. The firearm is then taken by another member of the group, who fires further rounds. The group then flees. Nobody is injured.”[36]
[36] Applicant’s SFIC at 4.
The Respondent (Statement of Facts, Issues and Contentions or SFIC at [9]) is somewhat more effusive:
“On 5 June 2015, the applicant was convicted in the District Court of NSW of the following:
(a) possessing an unregistered prohibited shotgun in a public place, for which he was sentenced to 4 years and 6 months imprisonment;
(b) firing a firearm at a dwelling in the course of an organised criminal activity with reckless disregard for the safety of another person or persons, for which he was sentenced to 5 years and 6 months imprisonment ; and
(c) attempting to break and enter a dwelling with the intent to commit larceny in circumstances of special aggravation (being armed with a dangerous weapon), for which he was sentenced to 8 years imprisonment with a non-parole period of 5 years.”
A fuller description can be given, incorporating the words of the Sentencing Judge (Frearson J):[37]
[37] G-documents at 39-43; Agreed Facts, Tender Bundle 2 at 16-19.
(a)in the early part of 2013 Farhad Qaumi[38] formed the Blacktown chapter of the Brothers for Life which “is a criminal group similar to an outdoor motorcycle gang whose criminal activities range from shootings at individuals, other firearms offences, to supply prohibited drugs and extortion”;
[38] Qaumi was/is a notorious criminal who in June 2017 was sentenced to a term of imprisonment of 60 years (with a non-parole period of 43 years) after his conviction on 15 counts of serious crimes including at least one contract killing.
(b)in around July 2013 Quami established the BFL Blacktown Club House and “[t]he facts say that the accused became a member of the Blacktown BFL around the same time”;
(c)“[e]very Saturday night Qaumi would hold weekly meetings at the club house where the group would discuss various criminal activities as well as any issues they had during the week and report any drug runners they knew of occurring in the area. So it was a sophisticated, well organised network designed for the purpose of criminal activities”:
(d)“[o]nly members that were associates of the BFL Blacktown could attend these meetings, it was quite an exclusive club apparently. Members were also expected to pay weekly fees, $50 per week, for rent and maintenance of the club house”;
(e)on the evening of 1 August 2013 members were summoned by Qaumi to attend a meeting at the Clubhouse where “Farhad Qaumi directed that the group leave the club house and break and enter a [particular] dwelling house [in] Eagle Vale”;
(f)“Qaumi supplied the group with an unregistered sawn-off Mossberg pump-action shotgun to use during the offence. Both the barrel and the butt of the shotgun had been cut down a few days earlier by members of the group at the club house. It was a prohibited weapon under schedule 1 of the Firearms Act”;
(g)the members summonsed were told that the premises were occupied by suspected drug dealers who had money, guns and drugs at the premises. Qaumi “instructed the group to tie the occupants up and shoot them if they needed to in order to steal all these things”;
(h)the members were instructed to use a variety of vehicles to get to the premises and “The firearm was loaded by someone in the group and handed to the offender who placed it into one of the vehicles”;
(i)the members were told to leave their mobile phones behind, so there could be no tracking of their location and to conceal their identities, “[s]o there is quite a degree of planning and sophistication involved here and deliberation”;
(j)the group arrived at the location and “[t]he front door of the property was kicked open by witness B smashing the lock. However, no entry was made”;
(k)“[a]round this time the offender started yelling words to the effect ‘It's BFL we are here to get you’ which seems to make a mockery of the idea of hiding BFL”;
(l)“[t]he offender began to fire a number of rounds from the shotgun through the window next to the front door whilst standing outside the residence. It is agreed between the parties that he fired three shots with a shotgun which would have sprayed everywhere, presumably. This was done with reckless disregard to the safety of those inside at the time”;
(m)“[t]he others there, the others in the venture, started banging on the windows and doors of the residence. It must have been a terrifying experience for those inside,” regardless of who they might be;
(n)“[a] short time after the offender discharged the shotgun the group began to flee. The reasons are not quite clear. As they did so one of them took the shotgun from the offender and discharged a further shot towards the garage door of the premises”;
(o)the group returned to the Clubhouse to report their lack of success in obtaining any drugs, guns or cash and Quami was initially upset at this failure but eventually calmed down; and
(p)“[t]he Mossberg shotgun used in the incident was returned to Qaumi and secured somewhere within the BFL Club House” and later recovered by the Police.

In summary, His Honour concluded in relation to the Applicant that, although he was acting as part of a conspiracy and under a degree of direction from Qaumi, nevertheless:
personally fired the three shots with the sawn-off pump action shotgun. He fired through a window. Even just fire at it he has fired right into it through the window. He expected people to be there at the time, that was the whole purpose of the venture, and he was in company with other gang members and they were complicit in the firing of the weapon.[39]
[39] Ibid at 44-45.
In determining the sentence to be imposed, His Honour further remarked in reference to the fact that the Applicant was still under the terms of the section 20 bond at the time of the offence:
In relation to the s 9 bond for the stalk and intimidate, when I looked at that this was another example of thuggish behaviour in company, thuggish, anti-social criminal behaviour, a s 9 bond had been imposed for 20 months, I revoke the bond. I impose a fixed term of imprisonment of two months from 1 July 2014.[40]
[40] Ibid at 53.
His Honour characterised the offence as “replete with aggression, threatened violence and it was accompanied by the repeated discharge of a shotgun” and as “a particularly serious example of this type of offence and I think this is well above and substantially the mid-range.”[41]
[41] Ibid at 45-46.
In relation to the Applicant’s future prospects, His Honour went on:
When I turn to remorse it has been contended on his behalf that he is remorseful. There is a limited amount of remorse; he accepts the responsibility, of course, by virtue of the plea. The plea itself is said to be a poor manifestation of remorse. I do not accept that there is any real remorse or any substantial remorse. He deliberately blasted that shotgun three times into the house putting people at risk. He has accepted responsibility. I cannot conclude that he is unlikely to re-offend, on the evidence he is likely to re- offend, but I appreciate that I can only sentence him proportionate to the gravity of the crime that he has committed not what he may do in the future. His prospects are necessarily guarded. It is difficult to understand how any human being would embark upon this type of violent, dangerous, anti-social activity because they were directed to do so by the head of some criminal anti-social, dangerous gang of violent misfits. It is difficult to understand, but that is exactly what has happened here and there is nothing to excuse it. The objective gravity is not diminished in any significant way.[42]
[42] Ibid at 51-52.
The Sentencing Judge did however find some “special circumstances” in this case after review of a psychiatric report and other material put before him, and his sentence took account of “drug addiction, totality and mental condition”.[43]
[43] Tender Bundle 2 at 4-5.
The Applicant gave extensive evidence and was subject to rigorous cross-examination by the Respondent’s representative before the Tribunal. In his evidence the Applicant asserted that:
(a)he first became aware of Brothers for Life while in custody when he was told about the gang by a fellow inmate;
(b)on release he sought out the gang, primarily because he hoped that he would be able to deal with his financial problems by obtaining drugs from them and on-selling them, although he was also attracted to the idea of finding some “sense of belonging” within a group;
(c)he was never a full “member” of Brothers for Life but rather some form of “associate” who was, as it were, on probation, to be considered for membership of the gang at some later stage;
(d)his association with Brothers for Life commenced after his release from custody in April 2013 and persisted up until he was arrested for the offence in August 2013;
(e)although the gang met every Saturday, the Applicant attended only twice a month during the period of his association (some four months);
(f)although he was fully aware of that the gang was engaged in a variety of criminal activities, he did not hear any detailed discussion of these activities while he attended the clubhouse meetings as this reflected his status as only an “associate” and not a “member” of the gang;
(g)at the time of the offence he was under the influence of methylamphetamine (“ice”) and this impeded his judgement in terms of all of his activities on the night in question; and
(h)while he was shouting (something) at the time of discharging the firearm he specifically denied that he made reference to “BFL”. The Sentencing Judge made reference to the fact that such identification made a “nonsense” of the gang’s concealment plans but clearly the Applicant was so affected by ice that he would have had no idea what he was saying.
There is a difference between the Applicant’s oral evidence to the Tribunal where he stated clearly that it was he who took the initiative and approached the Brothers for Life gang, partly in the hope of being able to get drugs to sell and his initial SFIC (at 4) where he claimed:
“After being approached by members of the Brothers for Life (BFL) criminal group, applicant joins BFL to feel a sense of belonging.”
The Tribunal concludes that the Applicant took deliberate steps to seek out the gang and to join it in some capacity shortly after his release from custody in 2013.
Offences while in custody
It cannot be said that the Applicant behaved as a model prisoner as he has a record of extensive breaches of disciplinary and other requirements while in custody. There are some 16 breaches recorded[44] of which at least three relate to prison charges of intimidation (including stand-over tactics).[45]
[44] G-documents at 69-71.
[45] Ibid at 166.
In making their original cancellation decision, the Minister’s Delegate noted:
38. Mr SHEMAON stated in his revocation request documents that there is ‘no risk’ of future reoffending, as he is a ‘new person’, with no drug use or gang affiliations, and further, he had not returned ‘one dirty urine’ sample or drugs charges in eight years of incarceration.
39. I am cognisant that these claims are contradicted by independent evidence. According to the New South Wales Department of Corrective Services Conviction, Sentences and Appeals report dated 13 January 2020, Mr SHEMAON has incurred penalties for breaches of prison discipline almost every year from 2013 to 2020, with several of these infractions relating to drugs. He failed a prescribed drug test on 9 November 2019, and subsequently refused to provide a sample for a drug test on 4 January 2020.
40. A report received from the Oberon Correctional Centre dated 15 June 2020 confirms that Mr SHEMAON’s incidents in custody included ‘failing a prescribed drug test’ on 9 November 2019, 24 February 2020 and 5 March 2020, as well as refusing to provide a sample on 4 January 2020. According to the report, 14 urine samples were requested for drug testing, and of this total, drugs were detected in six samples. Only four of Mr SHEMAON’s samples were found to be free of detected drugs, while the remaining four were not tested.[46]
[46] Ibid at 26.
In addition, while in custody the Applicant was breached for possession of prohibited substances, possession of a weapon, stealing, destroying property and disobeying instructions. The Tribunal notes also two matters involving fighting with other inmates, although in relation to one of these the Applicant has offered an explanation to the effect that he was the victim of an unprovoked attack.[47]
[47] Applicant’ Statement of 29 July 2022; G-documents at 351.
The extensive Case Notes provided by the NSW Department of Corrective Services[48] provide a mixed series of reports about the Applicant’s behaviour while in custody. There are a number of negative comments which focus on allegations of standover tactics and lack of co-operation with authorities. There is also a reference to the Applicant feeling that he was “set up on numerous occasions” in breaching various regulations.[49] By contrast there are equally a number of positive comments about the Applicant’s co-operative and polite interactions with custodial staff, his completion of training courses and his participation in internal programmes.
[48] G-documents at 161-191.
[49] Ibid at 182.
A somewhat non-cooperative attitude was also on display when the Applicant was being interviewed by the Probation and Parole Service in November 2013 which reported:
“Mr Shemoan stated that he would not discuss his offending behaviour as it had been dealt with in the court system and he did not want to incriminate himself in any way. He also refused to talk about his new charges. The offender appeared to attempt to only talk about matters which he considers will assist him on both his legal and immigrations situations and therefore his attitude towards his current situation was presented with caution and it remains unclear if he is genuine in his assertions.”[50]
[50] Ibid at 74.
There is evidence of some improvement in attitude and behaviour in a Pre-Sentence Report dated 2 June 2015 where it is reported that the Applicant:
“[e]ngaged in counselling to address his anger management issues as well as his motivation to supply illicit substances… To his credit Mr Shemaon continues to address his unresolved abuse issues with an institutional psychologist at the step down unit and asserts he will engage in counselling services upon his release to address these issues.”[51]
[51] Tender Bundle 2 at 37-40.
During the hearing the Applicant sought to challenge some of the reports of the custodial authorities in relation to the number of times that he failed drug testing procedures claiming further that the only drug he used while in custody was buprenorphine, which was later formally prescribed for him and provided by the health authorities per medium of depot injection.[52] The Tribunal however accepts the record of the custodial authorities as outlined above.
[52] Watson-Munro Report at 7-8.
Criminal associations
The Tribunal also notes the Applicant’s level of involvement with the notorious criminal gang known as “Brothers for Life”. The Sentencing Judge in 2015 described Brothers for Life as “an organised criminal gang” and it is a matter of public record that the gang and its members have been responsible for a number of murders and for extensive criminal activity especially in parts of western Sydney.[53] Notoriously the Southwest/Blacktown and Bankstown “chapters” of Brothers for Life have engaged in significant acts of inter-gang warfare. The Sentencing Judge characterised Brothers of Life as:
“The BFL is a criminal group similar to an outdoor motorcycle gang whose criminal activities range from shootings at individuals, other firearms offences, to supply prohibited drugs and extortion”.[54]
[53] G-documents at 352.
[54] Ibid at 39.
He characterised the “chapter” joined by the Applicant (and led by Farhad Qaumi) as a
“criminal group committ[ing] various crimes including armed robbery, extortion, drug supply and brazen public shootings. This gang was, indeed, a complete menace to the community and it menaced the community.”[55]
[55] Ibid at 39-40.
The Applicant’s SFIC states that he “join[ed] BFL to feel a sense of belonging”. This seems to derive from Dr Levine’s report which states:
“Mr Shemaon gave a version of these events. He told me, “I wasn’t even a member of the club, I was a hang-around, I met these people for one month, I had a sense of belonging with these people, I could mix with them, I don’t fit in with the rest of society with my tattoos. They gave me ice, I was so fucked in the head, I went along with it, I shot three warning shots through the window on ice.”[56]
[56] Levine Report, Tender Bundle 2 at 33.
Although the Applicant appears to have told the custodial authorities of his involvement (allegedly since ceased) with Brothers for Life[57], the Tribunal notes that in the Applicant’s extensive personal statement of 28 July 2022 there is no mention at all of his involvement with this gang, although there is a passing reference to being “careful with the company that I keep”.[58]
[57] G-documents at 182.
[58] Applicant’s Statement dated 28 July 2022 at [59].
The Corrective Services report also makes reference to “Inmate states previous involvement in OMCG (Nomads and Notorious)” as well as his involvement with Brothers for Life.[59] In a letter written to the Presiding Judge at the Parramatta District Court (dated 30 April 2013) the Applicant admits that he was “a member of the Notorious Motorcycle Club”.[60] This gang (an offshoot of the original Nomads) appears to have operated from about 2007 until 2012 when dismantled as a result of police operations, but during its existence was regarded as particularly dangerous.[61] Such Outlaw Motorcycle Gangs are often involved in violent and criminal activity and are often recruiting grounds for and socially disconnected and vulnerable young people.[62] The Applicant told the Tribunal that he was never a “member” of the Notorious gang and was never “patched” although he did wear gang-patched clothing belonging to other people. A Police Report of 9 April 2011 indicates that the Applicant was involved with another person who was actively seeking to dissociate himself from the Notorious gang and was returning the club patches, although whether or not the same was true of the Applicant is unclear.[63]
[59] G-documents at 182.
[60] Tender Bundle at 46.
[61] Academic Dictionaries and Encyclopedias, Notorious (gang): < NineMSN, Australia’s most dangerous bikie gangs: <
[62] Anthony Morgan, Christopher Dowling and Isabella Voce ‘Australian outlaw motorcycle gangs involvement in violent and organised crime’ (2020) Australian Institute of Criminology, Trends and issues in crime and criminal justice 586; Isabella Voce, Anthony Morgan, Christopher Dowling, ‘Early-career offending trajectories among outlaw motorcycle gang members’ (2021) Australian Institute of Criminology, Trends and issues in crime and criminal justice 625.
[63] Tender Bundle 3 at 19.
It is a common feature of the Applicant’s testimony in relation to several matters that he was only some sort of supernumerary or by-stander during the course of events:
·in relation to the “car sales theft” matter he says he was aware that a crime was to be committed, he did nothing to prevent it, but he was only marginally involved with assisting a co-accused and not the principal perpetrator;
·in relation to the Notorious motorcycle gang, he was never a “patched” member, merely an associate;
·in relation to the Brothers for Life, he was never a member, only an associate and he had no detailed knowledge of any of their activities other than the crime in which he was involved; and
·in terms of the firearms incident he was under the influence of “ice” and thus had diminished responsibility for his actions.
The Applicant in his evidence attempted numerous times to distinguish his status as an “associate” in the various gangs with which he was involved, as opposed to a “member”, seeking to rely on the Sentencing Judge’s remarks to do so. The Sentencing Judge noted that “[t]he facts say that the acc used became a member of the Blacktown BFL” and further that “[o]nly members who were associates of the BFL Blacktown could attend these meetings.”[64] The Tribunal is in no way seeking to go behind those sentencing remarks, which would be improper,[65] when it observes that the learned Judge’s remarks cannot be taken as distinguishing between a gang member’s status as a “member” or an “associate” which the Applicant submits is a distinction of some importance in relation to his offending.
[64] G-documents at 40.
[65] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.The Tribunal notes that it is impermissible for it to “go behind” the decision of the Court although it may take note of “the circumstances that led to the charges being laid against him”.
APPLICANT’S INVOLVEMENT IN COURSES AND CUSTODIAL EMPLOYMENT
Alongside the Case Note material, the Tribunal takes note of the extensive commitment made by the Applicant to undertake course and training programmes while he was in custody. The record shows that he completed the following educational/rehabilitation courses:
“15/05/2018 TLILIC2001A - Licence to operate a forklift truck
12/03/2018 SOA Chainsaw Operations TAFE
02/12/2015 Completed Workplace Hygiene/ Food Handlers Course
08/08/2019 ILC Hospitality Food Services Skill set SITXFSA001,SITXFSA002,
SITHCCCOO
05/03/2020 Certificate II in Skills for Work and Vocational Pathways.
10/11/2019 Health Survival Tips
29/08/2019 Equips Foundation
15/04/2016 Equips Aggressions
03/01/2018 Contribute to Health & Safety of Self & Others.
20/11/2018 Compass Core Skills Assessment.”[66]
[66] G-documents at 71.
In addition the Applicant completed the RUSH[67] programme which is
“an Australian forensic adaptation of Dialectical Behaviour Therapy (DBT). It Is a skills-based group treatment program comprising adapted versions of Marsha Linehan's DST skills-training modules that has been found to be effective in reducing stress, depression. and anxiety for offenders displaying suicidal, self-harming, and borderline personality characteristics.”
[67] Ibid at 169 and 182. RUSH = Real Understanding of Self-Help programme.
In their assessment the Delegate was critical of the lack of any:
“criminogenic or substance abuse rehabilitation programs or support groups are included in the list, and no other evidence or information has been submitted by Mr SHEMAON regarding attendance of such groups. …Mr SHEMAON was not currently engaged with mental health services or counselling, despite experiencing a psychotic episode in 2015 and attributing much of his offending to trauma as a result of the death of his father and his relationship breakdown.”[68]
[68] Delegate’s determination at [43], Ibid at 26.
While there is some validity in the Delegate’s comments, it is not clear as to which such programmes were either available to or which the Applicant was eligible during his incarceration and the Tribunal rather gives him credit for those which he did undertake.
In addition to these custodially-based courses the Applicant was given permission to undertake an extensive programme of distance-education provided by a number of Bible study centres, primarily the Emmaus Correspondence School and the Australian Institute of Theological Education. There is extensive material before the Tribunal demonstrating the Applicant’s detailed and prolonged involvement in these Bible study courses and his successful completion of study programmes and assignment writing. He appears to have done well in all of them.[69]
[69] Ibid at 133-157.
Similarly the Applicant deserves credit for his extensive record of employment while in custody:[70]
[70] Ibid at 71.
“FURNITURE UNIT - 1 (STHC) - 1 GEN. HAND
FOOD SERVICES (CES) FOOD SVCS. LEAD HAND
ENGINEERING (WEL) ENGINEERING TRAINEE
MAINTENANCE - INTERNAL (CES) CLEANER - VISITS
TIMBER MILL (GNS) TIMBER MILL GEN. HAND
TIMBER MILL (GNS) TIMBER MILL MACHINIST
MAINTENANCE (STHC) MAINT. GEN. HAND
MAINTENANCE - BUILDING (MRR) GEN. HAND
BUILDING REDEVELOPMENT (GNS) GEN. HA
MAINT.- INSOURCING (MSP) MAINT.-WELDER
BAKERY 1 (WEL) BAKERY 1 GEN. HAND
BAKERY 1 (WEL) BAKERY 1 LEAD HAND
BUMPERS - PSBU (STHC) GEN. HAND
COM/SERV - INT GROUND MAINT. MINIMUM
COM/SERV - INT GROUND MAINT. MINIMUM
PRINT UNIT 1 (WEL) PRINT UNIT 1 GEN. HAND
DEMOUNTABLES (CES) GEN. HAND
INTENSIVE LEARNING CENTRE (STHC)
ENGINEERING (WEL) ENGINEERING GEN. HAND.”
Participation in these courses has both equipped the Applicant with greater skills and enhanced his future employment prospects. Moreover, it was the Applicant’s uncontroverted evidence that his earnings in prison allowed him to pay off his substantial debt (some $4,000.00) to the State Debt Recovery Office which had accumulated primarily due to fines for traffic offences.
AN INTERVENING MATTER

It will be recalled that in April 2013 the Applicant was sentenced to a term of imprisonment of three years. This term exceeds the 12 months which the Act defines as establishing that a non-citizen fails to pass the character test. Under the Act such a determination may lead to an immediate revocation of a non-citizen’s visa.
In this instance the Minister chose instead to send the Applicant a letter, dated 10 September 2013[71] under the subsection 501(2) of the Act which provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
[71] G-documents at 353-357.
The Applicant acknowledged, in writing, receipt of the notification[72] and took advantage of its offer to make representations as to why his visa should not be cancelled. It was apparently on this occasion that he supplied a number of letters of support from members of his family, undated, which are now before the Tribunal in these proceedings.[73]
[72] Ibid at 358.
[73] Ibid at 97-116.
In the event the Notice was sent to the Applicant when he was already in custody for the subsequent (firearms) offence and no further action appears to have been taken on it.
It is agreed by both parties that it is not a relevant matter to be considered in these proceedings despite the specific reference to such notifications in MD90 at subparagraph 8.1.1(g).
EVIDENCE BEFORE THE TRIBUNAL
The Applicant
The Applicant gave extensive evidence and was cross-examined at length by the Respondent’s representative and the Tribunal. In relation to the Applicant’s evidence about his offences, that is referenced in relation to each of those offences as outlined above.
The Applicant believes that he suffered during his incarceration from being placed in segregation because of his perceived involvement with motorcycle gangs and this made his time in custody more difficult to bear. He reported the considerable extent to which his family visited him while he was in custody and sought to be moved back closer to Sydney when his transfer to Oberon made these visits more difficult. The Applicant also asserts that it was the separation from his family that contributed to his “relapsing with drugs in custody” while at Oberon.[74]
[74] Applicant’s Statement dated 28 July 2022 at [56].
The Applicant has expressed some consciousness of the fact that he has multiple tattoos, including at least two on his face and that these could be negative factors in seeking future employment, so much so that he applied while in custody to find some way of having them removed.[75]
[75] G-documents at 161.
The Applicant was particularly at pains to tell the Tribunal of the extent to which he was a “new man” and a “better man” as a result of both his incarceration and his “finding faith” through his religious studies. In his Statement (at [64]-[68]) he stresses the lessons which he learned from extensive Bible studies.
FAMILY MEMBERS AND FRIENDS
Numerous members of the Applicant’s family provided letters of support written in September/October 2013 in response to his request for such letters which he intended to submit to the Minister in response to receipt of the letter of 10 September 2013 notifying consideration of is visa cancellation.
The letters from his aunts (Hana Chamoun, Janet Zaia, Jackleen Zaia), his cousin (Thomas Mitchell); his uncle (James Zaia), his brothers (Leon Shemaon) and sisters (Juliana Shemaon, Ivy Walker, Caroline Shemaon)[76] are all largely formulaic. They all use the phrase “I strongly disagree about (the Applicant’s) deportation back to New Zealand” and they all offer to “give him full support if he gets out of jail.”
[76] G-documents at 97-116.
The Tribunal in no way seeks to cast aspersions against any of the family members nor to call into question their sincerity. However it is obvious that they were written for a purpose and obviously written without the full knowledge of the nature of the Applicant’s offending, especially in relation to the firearms offence which occurred after the incident prompting the initial departmental notification letter.
What the Tribunal does take from the letters and the presence of most of the family members in person at the Tribunal hearing is that the Applicant is fortunate to possess an extended family all of whom genuinely support him and all of whom would, no doubt, contribute to his reintegration into the community were he to be released.
Linda Shemaon
The Applicant’s sister provided not only a letter of support (undated, but apparently written in around October 2013) but also gave oral evidence to the Tribunal. Her initial letter was more detailed than those of her siblings (except that of Caroline Shemaon) and makes reference to her brother’s “concerning behaviour”. She makes reference to the fact that New Zealand is a place of “negative and hurtful memories” for her brother and that it was “separation from his wife which negatively impacted him, which resulted in him hanging with the wrong crowd and being where he is today.”[77] This latter comment was repeated when Ms Shemaon was interviewed by Mr Watson-Munro during the preparation of his report.[78]
[77] Tender Bundle 2 at 44.
[78] Watson-Munro Report at 10-11.
The Tribunal notes that Ms Shemaon admitted that she had little detailed knowledge of her brother’s offending record, but she went on in her evidence to indicate that any such precise details would not affect what she wanted to say in his cause.
Ms Shemaon is currently working as an NDIS support worker and studying for her Certificate IV in Disability Services with a hope to progress that to Diploma level.
She informed the Tribunal that, until the Applicant was moved to the correctional centre in Orange she made regular visits to him in custody and maintained continuing contact by telephone.
When asked by the Respondent if she would return to New Zealand were her brother to be deported there she was absolutely forthright in saying, “I would have to come back to help my brother”. She said that it would mean the sacrifice of her career and that would be difficult, nevertheless she would do it for the Applicant.
Ms Shemaon was a deeply impressive witness and one whose evidence weighs heavily with the Tribunal, over and above what might normally be expected from a close brother-sister relationship. In particular the Tribunal noted that she expressed a very clear view that time in custody (she knew the exact number of years, months and days) spent by her brother had been “good” for him in that it had “given him a new life based on the Scriptures” and that “he was a better man for his experiences”. She made an eloquent plea to the Tribunal to give her brother “a chance to prove himself”.
Mrs Bella Zaia
The Applicant’s mother gave evidence with the occasional assistance of an Arabic-language interpreter. In her original letter of support she referenced the impact on her son of both his father’s death and the ending of his marriage and the fact that after these events “we started to hear that he was hanging with the wrong crowd, which resulted in him being in jail”.[79]
[79] G-documents at 103.
Both Mrs Zaia and Ms Linda Shemaon moved back to Australia in late 2013 to be close to her son once she had been notified of the possibility of his deportation to New Zealand.
However, Mrs Zaia really has little knowledge of the extent of her son’s criminal behaviour. She was unaware of his drug habits, but she was convinced that he had become a far better person while he had been in custody.
As with Ms Linda Shemaon his mother had maintained close contact with her son throughout his custodial periods, primarily by telephone once the Applicant was moved outside the Sydney metropolitan area.
Father Aprem Pithyou
Father Aprem is the minister of the Ancient and Apostolic Church of the East in Wellington, New Zealand. This church ministers mainly to members of the Assyrian diaspora and Father Aprem knew Mrs Zaia, her late husband and several of their children back in Iraq.
Father Aprem was not able to elucidate any real knowledge of the Applicant’s offending behaviour and while he had positive memories of his as a young man in school and in the church in New Zealand[80] he had not maintained any further contact since those days.
[80] Tender Bundle 2 at 41.
The Tribunal notes that Father Aprem’s son, Phillip Pithyou (who is employed by the New Zealand Police service) also provided a letter of support in which, while he had no direct knowledge of the Applicant’s life after leaving New Zealand, was able to comment from his own knowledge on the Applicant being well regarded as a student in school and the profound impact of his father’s death.[81]
[81] Ibid at 42.
The Tribunal also notes a reference in support of the Applicant from a previous employer describing him as an honest worker, trustworthy and reliable.[82]
PSYCHOLOGIST REPORTS
[82] Ibid at 129. Paul Phillips’ (Wellington Engineering) Letter dated 20 September 2016.
Dr Anthony Levine
The first significant report was prepared by Dr Anthony Levine who is a consultant psychiatrist and prepared his report for the Applicant’s legal advisors dated 30 May 2015.[83] Dr Levine had access to extensive material relating to the Applicant’s criminal convictions but was primarily informed by matters relating to the firearms offence. He also personally interviewed the Applicant for 90 minutes at the Metropolitan Remand and Reception Centre in Sydney.
[83] Levine Report, Tender Bundle 2 at 31-36.
The Tribunal has referred above to Dr Levine’s report of what the Applicant told him about his association with Brothers for Life which is consonant with what the Applicant told the Tribunal in its hearings. Similarly. It has also averted to Dr Levine’s report about what the Applicant told him about the breakdown of his marriage.
What the Tribunal draws out further here are Dr Levine’s comments in relation to the Applicant’s drug abuse, his being the victim of childhood sexual assault and then Dr Levine’s own expert diagnoses.
The Applicant’s drug use appears to have started with the of ice use at age 19, regular cocaine use at age 20, heroin in 2014, prescription pharmaceuticals and a long history of extensive alcohol abuse from the age of 15 years.
Dr Levine’s report details the considerable extent to which the Applicant, as both a child and an adolescent was subject to physical and sexual abuse at the hands of older men and family members. The Tribunal does not think it appropriate to detail that abuse in these reasons but rather to say that it accepts that it was extensive and profoundly traumatic.
Dr Levine provided a risk assessment in the following terms:
“Mr Shemaon has a high loading of historical and current risk factors associated with violence, which place him in a category of people who are at a higher risk of violence.
Mr Shemaon also has a history of being vulnerable, and abused by others for sexual gratification. It is also possible that in his account of the material events, he was vulnerable to being exploited by others in terms of perpetrating violence at their behest. Mr Shemaon described a desire to belong to a group, and this desire may create a vulnerability for others to put him up to do further violent behaviours”.
Finally, his report made a formal diagnosis of the Applicant having an Antisocial Personality Disorder whose aetiology lies primarily in the nature of the abuse he suffered as a child and young person. He proposed a treatment plan to be followed by the Applicant both while in custody and upon release.
Mr Tim Watson-Munro
Mr Watson-Munro provided a report dated 28 July 2022. He also had access to extensive materials provided by the Applicant’s legal representatives, however he did not have access to Dr Levine’s report. Unlike Dr Levine, Mr Watson-Munro was only able to interview the Applicant by telephone over a two-day period. Unlike Dr Levine, Mr Watson-Munro also conducted interviews with two members of the Applicant’s family, his mother and his sister Linda.
Mr Watson-Munro’s report must be read in the light of both his limited engagement with the Applicant in person and as a clinical report not accompanied by any actuarial assessments based upon the administration of any formal psychometric tests.
His conclusions are somewhat limited, but include:
“[5] It is apparent that he has matured in custody and in detention. I note that there were some behavioural problems earlier on and that he provided one positive urine screen for Buprenorphine. At that time, he took positive steps to become actively involved in the Buprenorphine program by way of depot injection, which continued until he was transferred to the Villawood Immigration Detention Centre. Mr Shemaon has also endeavoured on a consistent basis to rehabilitate himself through Bible study, vocational courses and maintaining regular contact with a very supportive family.
[6] Discussions with his mother and sister confirm the impact of the death of Ms Zaia’s husband on the family and in particular, Mr Shemaon. They remain highly supportive of him and quite separately to his situation, his mother and sister are suffering clear signs of anxiety and depression concerning the possibility of his deportation. It is intended, if his appeal is successful, for him to live with the family in Fairfield. Mr Shemaon is keen to gain employment and to establish a relationship with a view to commencing a family.
[7] There are a number of protective factors in place for him should he be released to the community in Australia. These include his expressions of remorse, his ongoing and active steps towards rehabilitation, his involvement with the Church, his desire for employment, his motivation for treatment and the fact that he has been drug and alcohol free for a substantial period now. I believe treatment should involve both a combination of supportive and motivational psychotherapy and Cognitive Behaviour Therapy (CBT). The CBT should involve social skills training to improve upon his self-esteem, systematic desensitisation for his anxiety and although he has been drug free for some time, the further development of relapse prevention strategies.
[8] I believe that if Mr Shemaon maintains this regimen of treatment, in addition to the other protective factors, the diminished risk of him reoffending will be substantially reinforced.”
When pressed in cross-examination his opinion was that the Applicant had been initially at a high risk of reoffending which was trending downwards to moderate but that he would now rate risk at moderate trending to low. He conceded on several occasions that the Applicant was a “work in progress” and that his prospects depended very heavily on the Applicant entering into and maintaining a regime of extensive psychological counselling which might last for easily up to one year.
On the other hand, he also opined that “[o]n a more positive note, [the Applicant] has now detoxified and appears to have taken advantage of opportunities presented to him to rehabilitate in custody”[84] but agreed that this detoxification had been for only a relatively brief period of time to date and had not been tested by exposure to the variety of negative pressures in the general community.
[84] Watson-Munro Report at 3.
Mr Watson-Munro had not had the opportunity to read Dr Levine’s report but when portions of it were put to him he generally agreed with the analysis and conclusions although he was not supportive of the formal finding of an Antisocial Personality Disorder.
THE DECISION BEFORE THE TRIBUNAL
The Tribunal must make a simple determination – whether the cancellation of the Applicant’s visa the “correct or preferrable”[85] decision to be made on the basis of the evidence before the Tribunal.
[85] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister[86] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[87]
[86] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[87] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 Ministerial Direction 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(3A) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Subparagraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.

Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[88]
[88] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [89] to arrive at a final determination.
[89] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. The Preamble to the Direction clearly states as an “Objective” (emphasis added):
5.1(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[90]
PRIMARY CONSIDERATIONS
[90] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community and Family Violence
Under this criterion the tribunal must give specific attention to:
the nature and seriousness of the non-citizen's conduct to date; and
the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour. This list also draws attention to it being a serious offence to provide false or misleading information to the Department.
Critically, subparagraphs 8.1.1(d) provides that the Tribunal must consider:
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
The Applicant does not dispute that the offences in question related to the firearm matter were serious. Indeed, the Applicant agreed with the Tribunal that they were at a high level of seriousness – indeed few things can be more serious or more a threat to the community that a person in possession of a loaded shotgun who has no sense of self-control being under the direct and immediate influence of “ice”.
The Applicant’s offending (overall) has been frequent and it is clear that to “progress” from an offence attracting a 20-month bond to one attracting an eight-year prison sentence demonstrates a clear pattern of increasing seriousness and indeed increasing violence over a relatively short period of time.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[91] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[91] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The nature of risk assessment in contexts such as this was discussed by the Victorian Court of Appeal in Nigro where it said:
[111]  An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[124]  Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.
[125]  However the secretary rightly contended that it did not follow that where the assessment was that the level of risk was moderate and equated to the average sex offender risk, the circumstances could not in a particular case amount to an unacceptable risk. The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.
[130]  It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is “unacceptable”. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[92]
[92] Nigro v Secretary to the Department of Justice [2013] VSCA 213. Citations omitted.
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[93]
[93] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[94]
[94] Ibid.
The specific circumstances of this particular case which weigh in the mind of the Tribunal are:
(a)The extent to which the Applicant can resist the temptations which he will face in the community to both relapse into drug use and resort to acts of violence. The Applicant has a history of “going along” with suggestions made to him by others, albeit as a “bit player”. He was persuaded by others to raid a home in May 2011 to standover people for money. He was persuaded by others to take part in a scam to rob someone of $11,000.00. He was persuaded by a fellow inmate to seek out Brothers for Life once he left jail. He was persuaded by Farhad Quami to take place in a gang-raid and to carry a shotgun in the process. Dr Levine in his report identifies the Applicant’s “vulnerability for others to put him, up to do further violent behaviours”.
(b)The Applicant’s history of mental unwellness evidenced by his being placed in care by the custodial authorities following episodes of psychosis, possibly delusional behaviour and suicidal ideation which have not been addressed while in custody[95] and which would require a significant effort to address in the community, particularly if the regime suggested by Mr Watson-Munro were to be followed. In this respect the Tribunal is conscious of the provisions of subparagraph 8.1.2(2)(b)(ii) of the Ministerial Direction which enjoins a decision-maker to note that “decisions should not be delayed in order for rehabilitative courses to be undertaken.”
(c)The lack of empirical data related to any formal psychometric testing focussed on measurement of reoffending risk. The Tribunal notes that the only Level of Service Inventory – Revised actuarial testing available is that from NSW Corrective Services in June 2015 which shows a “medium” risk of reoffending[96] and the absence of any such tests from the reports of either Dr Levine or Mr Watson-Munro.
(d)The extent to which the Applicant can be taken at his word that he is a “new” or “better” man. The Applicant told the Court and has suggested to Mr Watson-Munro that he will eschew the use of drugs. Nevertheless while in custody he failed several drug tests, he accessed tobacco and buprenorphine and he was suspected of operating a mobile phone to arrange drops of such materials into the corrections centre.[97] Similarly, claims that he has eschewed his intimidating behaviours which were first evident with his conviction of “stalk/intimidate” in 2011 persisted in his current prison record where several such incidents are recorded.
(e)The extent to which when the Applicant and members of his family seek a “second chance” from the Tribunal, it should not be considered that more than one second chance has been offered and squandered. Judge Sides gave the Applicant something of a second chance when His Honour credited the Applicant with a degree of remorse in imposing a more “lenient” sentence than he might otherwise have done. He took the view that the Applicant’s remorse was such and that the Applicant had reasonable prospects of not re-offending. It took less than four months for the Applicant to prove how misplaced His Honour’s faith and generosity was. The Applicant has chosen to ignore the conditions imposed on him by way of bail or parole, granted to afford him a “second chance” and has repeatedly offended while under bail, bond or parole supervision.
[95] Tender Bundle 2 at 38-39.
[96] Ibid at 39.
[97] G-documents at 182.
Offsetting these factors, the Tribunal also considers:
(a)The exceptional level of family support evidenced during the proceedings both by way of written submissions from family members; the testimony given (especially by Linda Shemaon) and the sheer presence of family members to lend their moral support to the Applicant.
(b)The extent to which the Applicant has genuinely imbibed and taken on board the lessons which he says he has learned from his study of the Bible and his exposure to new ways of thinking about himself as a human being and his responsibilities to fellow members of his community. When he left prison in 2013 the Applicant had a choice: if he was looking for a place to “belong” why did he chose Brothers for Life, when he could have chosen the Ancient and Apostolic Church and the question is which choice would he make now?
(c)The willingness of the Applicant to commit to finding ongoing stable employment where the Tribunal is encouraged by the upskilling of various trade-based qualifications which the Applicant undertook in custody and the reference from at least one past employer. It is clear that the Applicant will have stable accommodation with his family, at least in the immediate term and this, together with employment is recognised as a significant protective factor mitigating against recidivist behaviour.
In weighing these matters the Tribunal concludes that the Applicant should be regarded as a having a medium, trending to low risk of reoffending.
This in turn leads to a conclusion that this criterion should be taken to count against the Applicant to a moderate degree.
Family violence
It is agreed between the parties that no issues of domestic or family violence have been raised in this application.
The criterion counts neutrally in relation to the Applicant.
The best interests of minor children
The parties agree that there are no relevant minor children whose interests need to be considered by the Tribunal.
The criterion counts neutrally in relation to the Applicant.
Expectation of the Australian community
Subparagraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Subparagraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (subparagraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (subparagraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[98] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[98] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[99]
[99] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision.
However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine. In this instance, the expectations should be rated at the same level as the risk of reoffending.
This criterion counts moderately against the Applicant.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[100]
[100] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[101]
[101] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[102] and more clearly supported by Wigney J in FHHM. [103]
[102] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[103] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[104] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[105]
[104] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[105] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[106]
[106] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].

In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[107]
[107] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[108]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[108] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
Neither party made any submission on this criterion and there are no relevant non-refoulement issues raised in these proceedings.
However, in his Personal Statement Form when the Applicant was asked: “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?” he answered “YES”. He further explained:
“It will be very hard for me to try to get a job in New Zealand and to make a living with no family support.”[109]
[109] G-documents at 95.
The Tribunal does not take this as a claim which engages any of the specific concerns which must be addressed in non-refoulement matters but will take these concerns into account in considering the impediments which the Applicant might face if returned to New Zealand.
The criterion counts neutrally in relation to the Applicant.
Extent of impediments if removed
Subparagraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
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 comparator here is not the difference between services or supports available tin Australia as compared with those in New Zealand, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
In terms of the matters designated for consideration by the Ministerial Direction, the Applicant is still a young man, he indicates that he does not suffer from any diagnosed medical or psychological conditions,[110] he lived in New Zealand for some time between 1992 and 2003 and so has a degree of familiarity with the country and its customs. He is fluent in English and has now a number of qualifications and trade skills which he developed by taking courses while in custody.
[110] G-documents at 94.
There is no doubt that separation from his extensive family network in Australia would have a major emotional and psychological impact on him and indeed this is recognised by the Respondent.[111] The Tribunal accepts that the mere presence of one uncle in New Zealand[112] does not form any basis to claim that the Applicant would have a support network were he to be returned there.
[111] Respondent’s SFIC at 44.
[112] G-documents at 91.
It is axiomatic that it would be relatively easy for the Applicant and his family to maintain a high degree of communication across the Ditch and that members of his family would not be impeded from visiting New Zealand from time to time. Of course the Tribunal has noted the heroic offer of Ms Linda Shemaon to sacrifice her career and immediate prospects in order to relocate to support her brother, but equally it would expect the Applicant to reject that offer out of hand.
The evidence before the Tribunal suggests that the impact of enforced return to New Zealand would be severe on the Applicant especially given the evidence about his mental health and his high degree of vulnerability.
This criterion counts significantly in favour of the Applicant.
Impact on victims
Subparagraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
Although there have been several victims of the Applicant’s criminal conduct none has been identified specifically for consideration under this criterion, and so the Tribunal does not trouble itself further with this matter.
The criterion counts neutrally in relation to the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have the right to remain in Australia indefinitely.”
The respondent concedes, although not explicitly, that this criterion has some weight in favour of the Applicant, albeit overborne by other factors.[113] The Tribunal weighs it differently. It is not necessary to repeat the observations made about the role of the Applicant’s family in these proceedings for conclusion to be drawn that his removal would have a devastating impact on all of them both individually and collectively.
[113] Respondent’s SFIC at 46.
The Tribunal must also consider factors such as how long an applicant has lived in Australia; when an applicant commenced offending related to their date of arrival; and what positive contribution they may have made to the Australian community. In the overall course of events, none of these factors is particularly significant, although the Respondent notes that the Applicant “appears to have contributed positively to the community through employment” although seeking to offset this against the impact of his offending behaviour.[114]
[114] Idem.
Paragraph 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. Noting that this provision refers to an employment link which would only generally be given weight where the work would “significantly compromise the delivery of a major project, or delivery of an important service in Australia”. The nature of the Applicant’s employment record is not such as to indicate that any credit can be given to him in relation to this consideration.
This consideration counts significantly in favour of the Applicant.
Further “other” considerations
Subparagraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section… 501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[115]
[115] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[116]
[116] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[117]
[117] Ibid at [70].
In Dunasemant I said:
The Tribunal gives credit to the Applicant in terms of how he appeared before it in the two-day hearing and his engagement in the Tribunal’s processes. On the other hand, while the original decision-maker (the Minister) did not have the advantage of personal observation of the Applicant, …this is not an irrelevant consideration.[118] Equally, the Tribunal is aware of the clear warning from the High Court about “the dangers of too readily drawing conclusions about truthfulness or reliability solely or mainly from the appearance of witnesses.”[119]
The contentions here are genuinely finely balanced however the Tribunal is prepared to accord the Applicant the “benefit of the doubt”[120] and accept that he has made and will continue to make genuine efforts at rehabilitation, self-improvement and community contribution. This counts materially in his favour.[121]
[118] Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331 at 334.
[119] Fox v Percy [2003] HCA 22 at [30] per Gleeson CJ, Gummow and Kirby JJ.
[120] Branson J in Li v Minister for Immigration and Multicultural Affairs [1999] FCA 870 at [7] approved the use of this standard reflecting “the fact that hearings before the Tribunal are not part of an adversarial process, and commonly, evidence in support of, or contradictory to, an applicant's claim are not available to the Tribunal.” It was also not disapproved of in Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367.
[121] Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1967 at 277-278.
Perhaps the Tribunal should, alluding to the degree to which such matters were in evidence before the Tribunal revert to describing its decision as embracing an element of “leap of faith”[122] rather than the more familiar and prosaic “benefit of the doubt”.
[122] Erroneously attributed to Soren Kierkegaard.
However that leap is based upon an appropriate attention to the calculus commanded by the Ministerial Direction, bearing in mind that Primary considerations should “generally” (subparagraph 7(2)) but not “always” be given greater weight than other considerations.
CONCLUSION
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria as far as it relates to revocation of the Applicant’s visa cancellation:
·protection of the Australian community weighs moderately against;
·family violence factors weigh neutrally;
·best interests of minor children weigh neutrally;
·expectations of the Australian community weigh moderately against;
·non-refoulement obligations weigh neutrally;
·extent of impediments if removed weigh significantly in favour;
·impact on victims weighs neutrally; and
·links to Australia weigh significantly in favour.
The Applicant has been weighed in the balance and not found wanting;[123] the calculus is marginally in his favour.
[123] Bible, (KJV) Daniel 5:27.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 12 August 2022

Date(s) of hearing: 3 and 4 August 2022

Counsel for the Applicant: Mr N Poynder

Solicitors for the Respondent: Mr H McLaurin, MinterEllison

[2022] AATA 2650

12 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	3 and 4 August 2022
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Respondent:	Mr H McLaurin, MinterEllison